Bonner v. Reandrew

• Decision Date: 01 July 1927
• Docket Number: 38065
• Parties: NELLIE BONNER, Appellant, v. MELVINA REANDREW et al., Appellees
• Court: Iowa Supreme Court

214 N.W. 536

203 Iowa 1355

NELLIE BONNER, Appellant, v. MELVINA REANDREW et al., Appellees

No. 38065

Supreme Court of Iowa, Des Moines

July 1, 1927

Appeal from Woodbury District Court.--A. O. WAKEFIELD, Judge.

Action for alienation of the affection of the plaintiff's husband. The action was commenced originally by service by publication. Default was entered, and judgment rendered in behalf of the plaintiff. Later, an application to set aside said judgment was sustained, and the cause was retried to the court, and an order entered, dismissing plaintiff's petition. From such order this appeal is prosecuted.

Reversed.

Naglestad Pizey & Johnson, for appellant.

Griffin Griffin & Griffin, for appellees.

FAVILLE EVANS, C. J., and STEVENS, VERMILION, and KINDIG, JJ., concur.

OPINION

FAVILLE, J.

In June of 1923, appellant instituted this action against appellees, to recover damages for alleged alienation of the affections of appellant's husband. The petition alleged that the appellees were nonresidents of the state of Iowa, and an attachment was issued and levied upon their property. Service of notice was had by publication, and, no appearance being entered, in due time the appellees were adjudged to be in default, and judgment was rendered on September 10, 1923, against appellees in the sum of $ 4,000. On or about November 10, 1923, the appellees filed in said action a motion to set aside said judgment, and prayed a retrial of said cause. A cost bond was filed, and also an answer, which, in effect, was a general denial of the allegations of the petition. Later on, the appellees filed an amendment to their answer, in which they pleaded that, at a date which was not only subsequent to the commencement of said action, but subsequent to the recovery of the original judgment in said cause, the appellant's husband had obtained a divorce from her in Mexico. The amendment pleading said alleged divorce was attacked by the appellant by motion, which was overruled, and later by demurrer, which was likewise overruled. Thereafter, appellant filed reply to said amended answer. Upon the trial, a certified copy of the alleged decree of divorce was offered in evidence, and appellant's objections thereto were overruled.

I. The decree of divorce was alleged to have been granted to the husband of appellant by the civil court of Merida, in Yucatan, a state of the United States of Mexico. The decree on its face recites that the appellant's husband, Bonner, appeared before a "judge of first instance of the civil court, and department of finance of the state, by authority of Article 33, of the Civil Register Code, and in the absence of the director general and officer of this department in this capital [Merida]." There is no recital whatever in the decree of divorce of any service of notice of said proceedings, by publication or in any other manner, upon the appellant herein, nor of any appearance by the appellant. Even if there were any pleading in the cause under which a valid decree of divorce between appellant and her husband could be admissible in evidence, the question at once arises as to whether, upon the record in this case, the decree of divorce of the Mexican court is entitled to recognition. The question of the force and effect to be given to a decree of divorce rendered in a foreign state usually arises in some form of action between the original parties, and most commonly in cases where the foreign decree has been entered by one of the states of the American Union. The courts have been at variance in regard to the true rule in such cases. We recently had before us the question of the recognition of a decree rendered in another state of the Union, in the case of Miller v. Miller, 200 Iowa 1193, 206 N.W. 262. In said case we recognized the validity of a decree of divorce entered in the state of Missouri, where one of the parties was domiciled. We did so under the doctrine of comity, although declaring that we were not required to do so by the full-faith-and-credit clause of the Constitution. In said case we said:

"This declaration of comity is not to be construed as an offer of cover or condonation to any form of fraud or bad faith in acquiring a pretended domicile in a state where in truth no domicile is acquired. We recognize that a good-faith domicile of one of the parties to the marriage is a sine qua non of jurisdiction, without which the decree cannot be valid, even in the state where entered. But we extend to such decree, good on its face, a presumption of validity; and the burden of attack must be upon him who denies the same. The policy of comity herein declared implies the reciprocal obligation of every state, through its divorce courts, to require satisfactory proof of the bona-fide domicile of the complainant within its jurisdiction, and to refuse to entertain jurisdiction in any divorce case in the absence of such proof. This is the proper place of emphasis; the strategic point at which the evil of 'easy' divorce can be successfully checked, without working calamity to innocent persons."

In the instant case, we are called upon to recognize the validity of an alleged decree of divorce obtained in a foreign country. The "full-faith-and-credit" clause of the Federal Constitution has no application to the case. The question of the recognition of a decree of divorce rendered at the domicile of one of the parties has been a subject of much discussion in the courts. It is a generally recognized rule that:

"Where husband and wife have separate domiciles, a divorce may be secured at the domicile of either." Goodrich on Conflict of Laws 290, Section 126.

But no court of any state or country has authority to render a decree of divorce which will be recognizable under our law where neither spouse is domiciled within the jurisdiction of the court granting the divorce. Bell v. Bell, 181 U.S. 175 (45 L.Ed. 804, 21 S.Ct. 551); Reed v. Reed 52 Mich. 117 (17 N.W. 720); Sammons v. Pike, 108 Minn. 291 (120 N.W. 540); Carling v. Carling, 78 N.J.Eq. 42 (81 A. 565); Blondin v. Brooks, 83 Vt. 472 (76 A. 184); German Sav. & Loan Society v. Dormitzer, 192 U.S. 125 (48 L.Ed. 373, 24 S.Ct. 221); Gregory v. Gregory, 78 Me. 187 (3 A. 280); Thelen v. Thelen, 75 Minn. 433 (78 N.W. 108); Smith v. Smith, 19 Neb. 706 (28 N.W. 296). Parties cannot by mutual consent or approval confer jurisdiction on a court to grant a divorce when neither of the parties is domiciled in the state or country...