Boudreaux v. Welch, 48042

• Decision Date: 07 November 1966
• Docket Number: No. 48042,48042
• Citation: 192 So.2d 356,249 La. 983
• Parties: Katherine G. BOUDREAUX v. Carl K. WELCH et al.
• Court: Louisiana Supreme Court

Page 356

192 So.2d 356

249 La. 983

Katherine G. BOUDREAUX v. Carl K. WELCH et al.

No. 48042.

Supreme Court of Louisiana.

Nov. 7, 1966.

Dissenting Opinion Nov. 30, 1966.

Rehearing Denied Dec. 12, 1966.

Aycock, Horne, Caldwell & Coleman, Jack C. Caldwell, Franklin, for plaintiff-applicant.

Caffery, Duhe & Davis, John M. Duhe, Jr., New Iberia, for defendants-respondents.

McCALEB, Justice.

The question for decision in this case is whether or not the Full Faith and Credit Clause of the United States Constitution¹ precludes the courts of this State from entertaining a collateral attack on a judgment of divorce rendered in the State of Mississippi when the validity of such judgment could not be challenged in the courts of that State?

The issue arises in a tort action by the alleged surviving widow of Carroll J. Boudreaux to recover damages for his wrongful death as a consequence of a vehicular collision with a truck operated by Carl K. Welch. Named as defendants, in addition to Welch, are GWECO, Inc. (employer of Welch) and American Employers Insurance Company (his liability insurance carrier).

As a defense to the suit, raised by way of a motion for a summary judgment, defendants contend that Mrs. Boudreaux is not the surviving spouse of the decedent within the intendment of our wrongful death statute, Article 2315 of the Civil Code, because she was never legally divorced from the first husband, Owen J. Mire. Defendants attached to their motion, among other exhibits, a certified copy of a judgment of the Harrison County Chancery Court of the State of Mississippi dated September 22, 1950, valid on its face, which purports to divorce plaintiff from Mire. This decree is assailed by defendants as absolutely null, it being alleged that neither party was ever domiciled in Mississippi and, therefore, the Court was without jurisdiction. In support of this claim, defendants adduced the following undisputed evidence:

Plaintiff was legally married to Owen J. Mire on August 22, 1924 and the parties lived together in this State until the latter part of 1947, when they separated. At that time they were living in Patterson, St. Mary Parish. Thereafter, plaintiff continued to live in the house where the parties had resided previously and she was living there on August 16, 1950 when she filed suit in the Chancery Court, Harrison County, Mississippi seeking a divorce from Mire. Plaintiff actually never resided in the State of Mississippi but visited there for a few days to testify in the divorce proceedings. On August 29, 1950 Mire executed a waiver of service and entry of appearance, conformably with Chapter 244, Mississippi Laws of 1936, which stated:

'I, the undersigned, Owen J. Mire, being advised that my wife, Katherine G. Mire, has filed a suit in the Chancery Court of Harrison County, Mississippi against me for a divorce, do hereby waive the service of process on me and do enter my appearance in said cause and consent that the same may be tried at the September, 1950 term of said court or at any succeeding term thereof.'

This document was filed in the divorce proceedings, and, on September 22, 1950, a final decree of divorce was rendered by the Chancery Court. Plaintiff subsequently married the decedent, Boudreaux, in December, 1950.

Defendants contend they are entitled to collaterally attack the Mississippi divorce decree on jurisdictional grounds under our holdings in Navarette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946) and Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) inasmuch as plaintiff, in her deposition taken on the motion for summary judgment, admitted that she was never a resident of Mississippi but had gone there for a few days only to testify in the divorce proceedings. Defense counsel further argue that, under the rulings of the Supreme Court of the United States in the two cases of Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273 (1942) and 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366 (1945) the issue of jurisdiction of the court that rendered the decree can always be the subject of judicial inquiry by the court of another jurisdiction and, when, as here, it has been established that Mississippi lacked jurisdiction over the subject matter because of non-residence of both parties, the decree of divorce is void ab initio and not entitled to Full Faith and Credit.

Plaintiff, on the other hand, declares that the judicial pronouncements cited in support of Navarette v. Laughlin have been markedly altered by later jurisprudence and that the instant case is distinguishable from Eaton v. Eaton. She asserts that the situation here is identical in principle with Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951) and, therefore, the Mississippi decree is not subject to collateral attack. Plaintiff's position is that the divorce decree, being valid under Mississippi law and invulnerable to collateral attack in that State by reason of the personal appearance of Mire in accordance with the laws of Mississippi, is entitled to the complete protection of the Full Faith and Credit Clause under the rulings (in addition to Johnson v. Muelberger) in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, 1 A.L.R.2d 1355 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376 (1948) and Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951).

The district judge sustained the motion for summary judgment and dismissed the suit. The Court of Appeal (First Circuit) affirmed. See Boudreaux v. Welch, 180 So.2d 725. On plaintiff's application we granted a writ of review.

Defendants' attack is untenable. In our view the case at bar is controlled by Johnson v. Muelberger.

Initially, we think it plain that the jurisprudential statements contained in Navarette v. Laughlin, founded (as they were) on the pronouncements in Williams I and Williams II cases, are inapplicable here as the doctrine of the Williams cases has been materially modified by the later jurisprudence of the Supreme Court of the United States. This was recognized by us in Eaton v. Eaton wherein all the recent cases on this subject--viz. Sherrer v. Sherrer, Coe v. Coe, Johnson v. Muelberger and Cook v. Cook, are cited and discussed.

In Johnson v. Muelberger, the Supreme Court had occasion to consider whether or not a collateral attack could be entertained by the courts of the State of New York on a divorce judgment rendered in the State of Florida. There, the daughter of the first marriage, who was the principal legatee under her late father's will, sought to have the New York State courts decree in the decedent's succession proceedings that her father's third marriage was a nullity on the ground that her father and his second wife were at all times domiciled in the State of New York, when that wife instituted proceedings in Florida which culminated in the granting of a divorce judgment in that State. Although the judgment was regular on its face it was shown, as here, that the second wife did not comply with the jurisdictional ninety-day residence requirement prescribed by Florida law. However, the decedent had appeared by attorney in the Florida court and interposed an answer denying the wrongful acts asserted by his wife but not questioning the allegations as to his wife's residence in that State. The New York Court of Appeals held that, whereas the decedent was bound by the Florida judgment, his daughter was a stranger to the divorce action, and, as such, she could collaterally attack her father's Florida divorce in New York, if she could have attacked it in Florida. And the court concluded that Florida would permit 'a stranger' to collaterally assail a Florida divorce decree on jurisdictional grounds even though the defendant had entered a personal appearance.

This decision was reversed by the Supreme Court. It was found that the New York court erred in holding 'a stranger' to a divorce judgment could attack the decree under the jurisprudence of the State of Florida. The court cited DeMarigny v. DeMarigny (Fla.) 43 So.2d 442 as authority for the resolution that a stranger to a divorce decree could not impeach it.² The Supreme Court went on to conclude that, since Florida would not permit Mrs. Muelberger to attack the Florida decree of divorce between her father and his second wife, New York could not entertain the attack by reason of the Full Faith and Credit clause. The Court said:

'When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids.'

This is exactly the case here. Mr. Mire, plaintiff's first husband, filed in the record in the Mississippi divorce proceedings a waiver of summons and entry of appearance. Issue was thus joined and this was sufficient to foreclose the jurisdictional question as res judicata. The filing of the waiver of summons and entry of appearance pursuant to Chapter 244, Mississippi Laws of 1936,³ after the institution of the divorce proceeding rendered the judgment unassailable as to Mire. In other words, by his entry of appearance he had an opportunity to litigate the jurisdictional question and this is all that is necessary in order for the Full Faith and Credit Clause to apply.

It was not obligatory, as the Court of Appeal believed, for Mire to have resisted the granting of the divorce. Indeed, Johnson v. Muelberger does not indicate that active participation by the defendant is necessary. On the contrary the basic element which bars collateral attack here is that the rendering State will not permit such an attack and considers the matter res judicata.⁴

In this connection a word should be said anent defense counsel's contention that the Sherrer, Coe, Johnson and Cook cases envision adversary proceedings and participation by ...