Ashton v. Ashton

• Decision Date: 25 May 1936
• Docket Number: 4-4284
• Parties: ASHTON v. ASHTON
• Court: Arkansas Supreme Court

94 S.W.2d 1033

192 Ark. 774

ASHTON v. ASHTON

4-4284

Supreme Court of Arkansas

May 25, 1936

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor reversed.

Judgment reversed.

Barber & Henry and Troy W. Lewis, for appellant,

Rita L. Callaway, for appellee.

OPINION

BUTLER, J.

The appeal in this case is from the decree of the court below awarding the appellee a divorce from the appellant.

Appellee filed his suit in the Pulaski Chancery Court on May 15, 1935 alleging that he was, and had been for more than two months prior to its institution, a bona fide resident of Pulaski county and State of Arkansas. After reciting the marriage of himself and the appellant in Michigan on April 5 1909, appellee alleged that on or about July 25, 1920, appellant, without reasonable cause, wilfully deserted him, and that they have continuously remained apart since that date. For a second ground, appellee alleged unkind, cruel, harsh and tyrannical treatment.

To this complaint appellant filed a special plea challenging the jurisdiction of the court on the ground that appellee was not a bona fide resident of the State, and that his presence in Arkansas was for the fraudulent purpose of defeating the legal rights of appellant. This plea was overruled by the trial court, and other pleadings were filed by the appellant which finally culminated in an amended answer interposing the plea of res judicata, and containing general denials of the allegations of appellee's complaint. Thereafter, by leave of court, appellee amended his complaint so as to charge desertion as the sole ground for divorce.

In support of the alleged ground, appellee testified in his own behalf introducing the depositions of several other witnesses. The testimony of appellee related to the alleged desertion of the appellant in 1920 and the circumstances thereof. The testimony of the other witnesses also related to that occurrence. This testimony was controverted by that of the appellant. In support of the plea of res judicata appellant introduced, without objection, certified copies of records or proceedings in the courts of the States of Illinois, Colorado and Nevada. From these the following facts appear. Willard H. Ashton, appellee, and Cora B. Ashton, appellant, were married on April 10, 1909. Soon thereafter they established their residence in the home of appellee at Rockford, Illinois, and were residing there in July, 1920. Some time after this date, Mrs. Ashton brought suit in the circuit court of Winnebago county, Illinois, against Willard H. Ashton alleging that defendant had wilfully and without probable cause deserted her, and she prayed for separate maintenance under the provisions of a statute of that State. Revised Statutes, ch. 68, § 22. The defendant entered his appearance and answered denying the allegations and alleging that Mrs. Ashton had wilfully deserted him on or about July 17, 1920, and prayed that the complaint be dismissed. The case was duly tried and among other things the court found and decreed "that the allegations in the said bill of complaint contained, are true as therein stated; that the said Willard H. Ashton, defendant, has been guilty of wilful desertion as charged in said bill of complaint, and that the said complainant is now living separate and apart from the said defendant without any fault, cause or misconduct on her part; that on or about the 17th day of July, 1920, the said Willard H. Ashton wilfully abandoned and deserted the said Cora B. Ashton without excuse, provocation or reason, and that he, the said Willard H. Ashton, has since said date continued to absent himself from the said complainant, and his home in the city of Rockford, Winnebago county, Illinois." It was further adjudged that Mrs. Ashton be paid $ 75 per week as separate maintenance until further orders of the court.

In 1927, Mr. Ashton filed suit against his wife in Larimer county, Colorado, alleging that he was a citizen and resident of that State, and praying for a divorce on the ground that his wife had been guilty of extreme and repeated acts of cruelty toward him. Mrs. Ashton defended by general denial, and the issues were presented to a jury which found in her favor. The court ordered that Ashton pay his wife $ 75 per week "as heretofore." Thereafter Ashton returned to Illinois, and there sought a modification of the decree of the Illinois court. The court, on the showing made, reduced the payments to the sum of $ 60 per week. Ashton next appears in the courts of Colorado as plaintiff in a proceeding against his wife, and the sheriff of Larimer county seeking a modification of the decree relating to the temporary alimony awarded by the court in his previous action for divorce. In 1931, he appears in a court in Clark county, Nevada, alleging that he is a resident and citizen of that State, and praying for a divorce from his wife. This proceeding was a long drawn-out affair, numerous pleadings being filed and orders made by the court. It finally went to trial on December 5, 1932, when the issues were submitted to a jury, resulting in a verdict and judgment denying the prayer of Ashton's complaint. Thereafter, this judgment was set aside, and a decree was entered in favor of Ashton granting the divorce as prayed. Upon motion of Mrs. Ashton this decree was vacated, the court finding "that there was irregularity in the proceedings of the court by which the defendant was prevented from having a fair trial, and further that error in law occurred at the trial, and that there was irregularity in the order of the court in sustaining plaintiff's demurrers to defendant's affirmative defenses in said action by which the defendant was prevented from having a fair trial." This order was made on July 23, 1934.

In this state of the record, and without proceeding further in the Nevada court, Ashton, on May 13, 1935, filed his complaint in the Pulaski Chancery Court, and on June 24, 1935, filed a motion in the Nevada court for the dismissal of the action there pending, on the ground that he had moved his citizenship to Arkansas. This motion was overruled, and the cause is now pending in the Nevada court.

It is the contention of the appellee that the orders of the courts of Illinois, Colorado and Nevada, hereinbefore mentioned, were inadmissible for the reason that all the pleadings and proceedings on which the judgments and orders were based were not authenticated and produced so as to show that the courts were authorized to render the judgments upon which the appellee rests her plea of res judicata. This contention is made on the familiar rule that "to maintain an action on a judgment against a plea of nul tiel record, a certified copy of the judgment alone is not sufficient, but all the pleadings and proceedings on which the judgment is founded, and to which as a matter of record it necessarily refers, must be produced." Hallum v. Dickinson, 47 Ark. 120, 14 S.W. 477; Hall v. Raulston, 70 Ark. 343, 68 S.W. 24; Swing v. St. Louis Refrigerator & Wooden Gutter Co., 78 Ark. 246, 93 S.W. 978, 115 Am. St. Rep. 38; McCarthy v. Troll, 90 Ark. 199, 118 S.W. 416. A sufficient answer to this contention is that the orders and decrees were introduced without objection, and there was no plea of nul tiel record.

It is next insisted by appellee that the plea cannot be sustained as to the judgment rendered by the Illinois court in 1921 because, he says, that decree was set aside and vacated. In this appellee errs. On June 25, 1935, during the pendency of the instant case, Mrs. Ashton filed her petition in the Illinois court for a citation requiring the appellee to appear and show cause why he should not be adjudged guilty of contempt of court on his failure to pay $ 11,428 due her under the decree rendered in her favor on March 23, 1931. Very opportunely for Mr. Ashton, the Legislature of the State of Illinois, by its act filed July 20, 1935, amended the statute upon which Mrs. Ashton's proceeding for separate maintenance was based. This act in part provides: "That where there are no living children born of such marriage, no person having once received separate maintenance or temporary alimony for a period...