Bowen v. Bowen

Decision Date12 February 1935
Docket Number42743.
Citation258 N.W. 882,219 Iowa 550
PartiesBOWEN v. BOWEN.
CourtIowa Supreme Court

Appeal from District Court, Woodbury County; F. H. Rice, Judge.

Plaintiff was the husband of defendant. He obtained a default decree of divorce on notice by publication. The defendant within the year filed petition for a new trial on the ground that fraud had been practiced in obtaining the decree, in that a court of competent jurisdiction in the state of Illinois had previously, by judgment and decree awarding separate maintenance to the wife and dismissing the cross-complaint of the husband for a divorce, determined the issues, and this fact was concealed from the court. The trial court refused to grant a new trial. The defendant appealed.

Reversed and remanded.

Lester C. Davidson, of Sioux City, for appellant.

Hill & Guttelman, of Sioux City, for appellee.

POWERS, Justice.

The appellee and appellant were married at Rock Island in the state of Illinois on the 29th day of November, 1916. The appellee is the husband and the appellant the wife. They will be referred to in this opinion, whenever possible, as the husband and the wife. They lived as man and wife at Rock Island until about the 14th day of March, 1930, and the wife still lives there.

Some time prior to the month of March, 1932, the wife filed, in the state of Illinois, an action against the husband for separate maintenance. The husband appeared in the case and filed a cross-complaint for divorce. The case went to decree on the 2d day of March, 1932, and the court, on that date dismissed the husband's cross-complaint for divorce on the merits, and by the same decree allowed the wife separate maintenance on the ground that the husband had, on March 14, 1930, " without any reasonable cause, wilfully deserted and absented himself" from the wife, and that " he is guilty of extreme and repeated cruelty as charged in the bill of complaint." Shortly thereafter, the husband instituted an action for divorce in the state of Nevada, and sought to get jurisdiction by the publication of notice. The wife learned of that action and appeared in the case and filed an answer setting up the decree in Illinois, and on the 28th day of May, 1932, a decree was entered by the court in Nevada dismissing plaintiff's petition for divorce on the ground that the matters had been adjudicated by the decree in Illinois. Thereafter, and on the 30th day of March, 1933, the husband filed a petition against the wife in the district court of Woodbury county, Iowa, and caused notice to be published in the Sioux City Stylus, a newspaper published at Sioux City, Iowa, but, if such newspaper is one of general circulation in Woodbury county, as required by section 11084 of the Code 1931, that fact does not appear. There was no appearance by the wife, default was entered, and a divorce granted to the husband. The grounds for divorce, as set out in plaintiff's petition, are as follows: " Par. 6. That on or about the 14th day of March, 1930, the defendant in violation of her marriage vows and without any fault of the plaintiff, wilfully deserted this plaintiff and has ever since absented herself from him without any reasonable or just cause therefor. Cruel and inhuman treatment."

Within a year after the entry of the decree, the wife appeared in the action in Woodbury county, Iowa, and filed a petition for a new trial. This pleading was originally designated as a motion to vacate the decree and for a new trial but was later amended and designated as a petition and no question is here raised but that it is sufficient in its allegations and was filed in time to entitle it to consideration as a petition for a new trial filed under the provisions of section 12788, Code 1931.

The question raised by the petition is, Should the divorce decree granted the husband by the district court of Woodbury county, Iowa, be set aside because of fraud practiced in obtaining it? The trial court refused to set aside the decree on the petition of the wife, and appeal has been taken to this court.

It is the well-established policy of the law to have an end to litigation, and, where parties have litigated a question to final determination in a court of competent jurisdiction, it is not open to either of them or their privies to thereafter institute another action for the purpose of having this same question determined. This is the basis of the doctrine of res adjudicata. Town of Kenwood Park v. Leonard, 177 Iowa, 337, 158 N.W. 655; Smith v. Cretors, 181 Iowa, 189, 164 N.W. 338.The principle applies, not only to the questions actually determined, but also to all questions which should properly have been determined. Secor v. Siver, 165 Iowa, 673, 146 N.W. 845; Hodge v. Shaw, 85 Iowa, 137, 52 N.W. 8, 39 Am.St.Rep. 290; Beh v. Bay, 127 Iowa, 247, 103 N.W. 119, 109 Am.St.Rep. 385.These rules are particularly applicable to domestic courts, that is, courts of the same jurisdiction, but the full faith and credit clause of the Constitution of the United States requires that like effect in that respect be given to the judgments of other states. In re Guardianship of Baxter, 191 Iowa, 407, 182 N.W. 217; Secor v. Siver, 165 Iowa, 673, 146 N.W. 845.

So in this case, when the court of the state of Illinois dismissed the husband's cross-complaint for a divorce, the court determined that no grounds for divorce in favor of the husband existed on that date, and the judgment is not limited to the particular grounds for divorce which he may have pleaded. Moreover, since the law of Illinois is presumed to be the same as our own in the absence of any proof to the contrary (Secor v. Siver, 165 Iowa, 673, 146 N.W. 845), and since, under our law, a decree of separate maintenance must be supported by proof of grounds sufficient for a divorce (Leonard v. Leonard, 174 Iowa, 734, 156 N.W. 803), the effect of the decree entered in the court in the state of Illinois granting the wife separate maintenance was to determine that the wife was entitled to a divorce from appellee, and, more particularly, that she was entitled to such divorce because the husband had deserted her on the 14th day of March, 1930, and on the further ground that he had treated her with extreme cruelty.

In view of the fact that there had been an adjudication of the question of the husband's right to a divorce and that adjudication was binding on the district court of Woodbury county, Iowa, could the husband obtain a divorce there except by the practice of fraud?

It is suggested that the evidence which was introduced before the court as a basis for the decree of divorce was not made a matter of record, and is therefore not available and that, in the absence of such evidence, it cannot be said that there was a fraud practiced in obtaining the decree. But the evidence, whatever it was, if material to the issue, must have established that the wife deserted the husband on the 14th day of March, 1930, but such a showing could not be honestly and truthfully made because the court in the state of Illinois had determined that the husband deserted the wife on that date and the husband knew of...

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