Atkins v. Atkins

• Decision Date: 11 May 1944
• Docket Number: No. 27461.,27461.
• Citation: Atkins v. Atkins, 386 Ill. 345, 54 N.E.2d 488 (Ill. 1944)
• Parties: ATKINS v. ATKINS.
• Court: Illinois Supreme Court

386 Ill. 345

54 N.E.2d 488

ATKINS

v.ATKINS.

No. 27461.

Supreme Court of Illinois.

March 21, 1944.

Rehearing Denied May 11, 1944.

Action by Ethel W. Atkins against Walter B. Atkins, for separate maintenance. From a decree for plaintiff, defendant appeals.

Affirmed.Appeal from Circuit Court, Logan County; Frank S. Bevan, judge.

C. H. Woods, of Lincoln, for appellant.

Harold F. Trapp, of Lincoln, for appellee.

MURPHY, Justice.

The parties to this proceeding were married January 16, 1934. By this appeal the defendant husband seeks reversal of a decree entered in the wife's separate maintenance action which was entered in the circuit court of Logan county. Defendant was ordered to make monthly payments to plaintiff for her support and maintenance and to pay her solicitor's fees in the amount fixed by the decree. The decision of this case rests upon the effect to be given a decree of divorce granteed defendant in the district court of Washoe county, Nevada. Defendant started the Nevada proceeding five days after plaintiff instituted her suit in Illinois. The chancellor held the Nevada decree could not be given the effect of barring plaintiff's right to support and maintenance. This ruling is assigned as error.

The jurisdiction of this court to take the cause on direct appeal is dependent upon whether such assignment raises a constitutional question. Defendant contends that under the full-faith-and-credit clause, section 1 of article IV of the Federal constitution, the court erred in rejecting the Nevada decree.

Section 75 of the Civil Practice Act (Ill.Rev.Stat.1943, chap. 110, par. 199) prescribes the jurisdictional limits by which this court may take a case on direct appeal. Among other grounds, it is provided that jurisdiction shall attach on direct appeal where there is a question involving the ‘construction of the constitution.’ This phrase has been construed to include cases involving construction of the Federal constitution as well as provisions of the State constitution. VanDyke v. Illinois Commercial Men's Ass'n, 358 Ill. 458, 193 N.E. 490;Central Union Telephone Co. v. City of Edwardsville, 269 U.S. 190, 46 S.Ct. 90, 70 L.Ed. 229.

The Supreme Court of the United States is the final arbiter as to the meaning of the full-faith-and-credit clause of the Federal constitution (Milwaukee County v. M. E. White Co., 296 U.S. 268, 274, 56 S.Ct. 229, 80 L.Ed. 226), but that does not prohibit this court in the first instance from disposing of a Federal constitutional question when properly presented. Prior to the decision in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, the bench and bar of this State had assumed that the decisions of the United States Supreme Court as announced in Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867,5 Ann.Cas. 1, and other cases, and the decisions of this court in cases such as Dunham v. Dunham, 162 Ill. 589, 44 N.E. 841,35 L.R.A. 70, and Field v. Field, 215 Ill. 496, 74 N.E. 443, contained a full exposition of the meaning of the full-faith-and-credit clause and that the State court's problems were limited to an application of the principles announced in such cases to the facts of the particular case. It was generally regarded that such cases did not present constitutional questions sufficient to give this court jurisdiction on direct appeal. As a result many cases involving the application of the full-faith-and-credit clause were appealed direct to the Appellate Court. Some of those cases are Grein v. Grein, 303 Ill.App. 398, 25 N.E.2d 409;Jardine v. Jardine, 291 Ill.App. 152, 9 N.E.2d 645;Janssen v. Janssen, 269 Ill.App. 233, and Wynn v. Wynn, 254 Ill.App. 254.

If the facts in this case were on all fours with the facts in Williams v. North Carolina, we would conclude that the contentions made here in reference to the constitutional question are fixed and determined by that case and that this court would not assume jurisdiction on direct appeal. However, we believe there is sufficient difference between the facts of this case and the Williams case as to require a consideration of the full-faith-and-credit clause which was expressly excluded from the scope of the decision in the Williams case. If such assumption is correct, then the determination of the questions involved leads to a construction and interpretation of the full-faith-and-credit clause of the Federal constitution and this is sufficient for jurisdiction to attach on direct appeal.

Plaintiff and defendant were residents of this State prior to their marriage. Immediately after they were married they established a home in Lincoln, Illinois, where they lived as husband and wife until May 8, 1940, when defendant moved from the home.

On August 8, 1941, plaintiff filed the instant suit for separate maintenance in Logan county. It was alleged that she was a resident of Illinois and had been for more than ten years, and that defendant was a resident of Lincoln, Logan county, Illinois. It was also alleged that defendant deserted and abandoned plaintiff, without fault on her part, on May 8, 1940. A summons was issued, as requested, directed to the sheriff of Logan county for service but it was returned by said sheriff with the notation that defendant could not be found in the county. Plaintiff's affidavit attached to her complaint stated that defendant had gone out of the State and that his address was Reno, Nevada. Notice was published as is required by statute of this State to obtain constructive service on defendants who are without the jurisdiction. There is nothing in the allegations of the complaint or plaintiff's affidavit which can be taken as her admission that defendant had established a domicile in the State of Nevada.

On August 13, 1941, defendant filed a suit for divorce in the district court of Washoe county, Nevada. The grounds were ‘extreme cruelty entirely mental in character.’ Such grounds are not recognized as cause for divorce in Illinois. Constructive service was had upon plaintiff by the sheriff of Logan county, Illinois, serving her in that county be delivering her a copy of the Nevada complaint. She was not personally served in Nevada and did not appear in the suit, either in person or by attorney. On December 23, 1941, in an ex parte hearing in the Nevada court, defendant obtained a decree of divorce from plaintiff.

The defendant registered at a hotel in Reno, Nevada, June 30, 1941, and continued his stay there until August 25, when he moved to a private home. On August 26, he left Nevada and returned to Illinois, where he remained until November 11. He then returned to Nevada and occupied the room in the private home to which he had moved on August 25.

While defendant was in Illinois, he entered a special appearance in plaintiff's separate maintenance action, limited to a motion to dismiss on the grounds that no personal money decree for payment of alimony could be entered against him since he had not been personally served by process issued by the Illinois court. Plaintiff amended her complaint by inserting an allegation that defendant owned certain real estate located in Logan county. She prayed that her action should proceed as an action in rem against the real estate and that any amount of alimony that might be decreed her, should be secured by impressing a lien on defendant's real estate in this State. She further prayed that if payment should not be made as ordered, that such real estate be sold to satisfy the decree. Defendant's motion to dismiss was overruled. Thereupon a rule was entered directing him to plead to plaintiff's complaint by December 31, 1941. On the latter date, he filed, in the Illinois proceeding, his answer, counterclaim and plea of puis darrien continuance. The Nevada divorce proceedings were set forth in the counterclaim and plea as a bar to plaintiff's action. After a hearing of evidence the chancellor held the Nevada proceeding insufficient either as part of a pleading or as evidence to bar plaintiff's right to separate maintenance. The decree fixed the amount of the monthly payments, the solicitor's fees and impressed a lien upon defendant's real estate to secure the payment of the same. It directed that if the same were not paid, an execution should issue. During the course of the proceeding, the chancellor overruled defendant's motion to dismiss plaintiff's complaint and sustained plaintiff's motion to strike those parts of defendant's answer and counterclaim which set forth the Nevada proceeding. Plaintiff's motion to strike challenged the Nevada proceeding on the grounds defendant did not have a bona fide domicile in Nevada when the decree was entered and that he had withheld from the Nevada court material information as to the status of the separate maintenance proceeding pending in Illinois. Defendant's notice of appeal is from the final decree entered and the orders entered on the several motions.

Section 1 of article IV of the Federal constitution directs: ‘Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved and the Effect thereof.’ By the act of May 26, 1790, 28 U.S.C.A. chap. 17, § 687, Congress exercised the power conferred and provided for the certification of such proceedings and directed that judgments ‘shall have such faith and credit given to them in every court within the United States as they have be law or usage in the courts of the State from which they are taken.’

The conflict of policy between this State and Nevada as to what shall constitute grounds for divorce is controlled by Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, and the fact that defendant was granted a divorce in Nevada on grounds not recognized by the laws of this State is of no consequence...