Bethune v. Bethune

• Decision Date: 01 June 1936
• Docket Number: 4-4316
• Citation: 94 S.W.2d 1043,192 Ark. 811
• Parties: BETHUNE v. BETHUNE
• Court: Arkansas Supreme Court

94 S.W.2d 1043

192 Ark. 811

BETHUNE v. BETHUNE

4-4316

Supreme Court of Arkansas

June 1, 1936

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

Affirmed.

Atkinson & Stewart, for appellant.

B E. Friday and Robert L. Rogers, II, for appellee.

OPINION

BUTLER, J.

In August, 1930, the appellee, Johnnie Mae Bethune, nee Owen, resided with her father in the town of Wynne, Arkansas. In that month she was married to the appellant, Roderick A. Bethune, in Marion, Arkansas.

The appellant admits his cohabitation with the appellee as man and wife, but testified that this occurred only on a very few occasions. The appellee, on the other hand, testified, and was corroborated in her statement, that appellant visited her in her home nearly every week-end for several months, and at other times they would spend the week-end in Memphis or some other city. Appellant is a civil engineer, and at this time had employment in Arkansas. In November following the marriage, appellant left the appellee, and it appears that he filed suit for divorce in Pulaski county soon thereafter. Before, this, however, during the period when he was visiting his wife from time to time, he secured a sum of money from her. He stated that it was about $ 200, and she says it was $ 250. Appellant had gotten into some kind of trouble as a result of an automobile collision and needed money. He informed his wife of this, and she told him she had $ 250 she would let him have with the understanding that he was to return it to her whenever she needed it. Appellant claims that it was a gift, but even from his own statement, there is nothing to justify his contention. He admits mentioning to appellee his need of money, that she volunteered to let him have some, and handed him the money one evening while they were in his car. In this connection, appellant stated: "Nothing was said about whether it was a loan or a gift."

Appellant abandoned his suit for divorce in Arkansas, and moved to Bastrop, Louisiana, early in 1931. He obtained employment with the Louisiana Highway Commission, and was transferred to Plaquemine in that State. The appellee learned of his being at this place, and in December, 1931, went there to endeavor to collect the money she had let him have. When he learned she was in town he reported the matter to his lawyer, and, as a result of his conversation with the lawyer, the latter procured the sheriff who took charge of the lady and searched her for a weapon. Finding none, she was released. She was unable to collect the money, however, and then asked appellant to pay her hotel bill and to give her enough money to go back home, both of which he refused to do. According to appellee's statement, she learned definitely that appellant had married another woman while she was "at the races." A short time afterward she filed suit for divorce and alimony. She obtained a decree to reverse which this appeal is prosecuted.

As a defense to appellee's suit, appellant pleaded a divorce which he had obtained in the State of Morelos, Mexico, and further that she was estopped from prosecuting her present action because of acquiescence in the divorce decree granted in Mexico. The facts relating to this divorce are: Shortly after appellant established his residence in Bastrop, Louisiana, he went to Mexico on March 12, 1931, in order to obtain a divorce in that country. He stayed in the State of Morelos, Mexico, nine days, hired a lawyer, signed a power of attorney and returned to Bastrop. Later he received a certified copy of a decree of one of the courts of Mexico granting him a divorce from the appellee, on the alleged ground of "incompatibility of temperament." From this decree it appears that suit was filed on March 17, 1931, and final decree was rendered on May 30, 1931. The appellant appeared in the Mexican court only one time, and, as before stated, signed a power of attorney. He gave no testimony by deposition, or otherwise in the Mexican court.

There is nothing in the record by which we are advised what the laws of Mexico are concerning divorce, but we presume they are such that some evidence must be taken to establish the grounds for divorce alleged, and that something more than a brief stay in the country is required to give the court jurisdiction of the person. Indulging that presumption, the decree obtained is clearly a fraud on the courts of Mexico, and would accordingly have no binding effect there or elsewhere. If, however, the laws of Mexico do not require any residence within its territory as a basis for jurisdiction excepting a mere entry and a stay for the number of days disclosed by this record, and no evidence to support the allegation for divorce, its decree is entitled to no faith and credit in this State, for as is said in Bergeron v. Bergeron, 287 Mass. 524, 192 N.E. 86, " to recognize the Mexican divorce as valid in the circumstances here disclosed would frustrate and make vain all State laws regulating and limiting divorce. By such recognition State control over the marriage relation would be destroyed." Another reason why the Mexican divorce has no binding effect is that the ground alleged was "incompatibility of temperament" which is not a ground for divorce in Arkansas. The matrimonial domicile of the parties, during the time of their cohabitation as husband and wife, was at all times in this State, and...