Bredin v. Bredin
| Decision Date | 12 April 1956 |
| Docket Number | Civil No. 133-1955 |
| Citation | 3 V.I. 198 |
| Parties | LEWIS L. BREDIN, Plaintiff v. NATALIE BERTHOLD BREDIN, Defendant |
| Court | U.S. District Court — Virgin Islands |
See, also, 140 F. Supp. 132
Action for divorce. The District Court, Moore, J., refused to accept jurisdiction on ground that defendant wife who appeared specially had been granted separate maintenance via Florida Court and that plaintiff husband was appealing in the courts of Florida from the Florida decree.
Order in accordance with opinion.MAAS AND BAILEY, CHARLOTTE AMALIE, VIRGIN ISLANDS, (DAVID E. MAAS, ESQ., Charlotte Amalie, Virgin Islands of counsel), for plaintiff
DUDLEY, HOFFMAN AND MCGOWAN, Charlotte Amalie, Virgin Islands, (GEORGE H. T. DUDLEY, ESQ., Charlotte Amalie, Virgin Islands of counsel), for defendant
This is an action for divorce initiated by the plaintiff, Lewis L. Bredin, on July 22, 1955, on the grounds of cruel and inhuman treatment and upon which petitioner prays this court for a decree of divorce absolute and for such other and further relief as to the Court may seem just and reasonable in the premises.
The plaintiff was represented by the firm of Maas and Bailey, David E. Maas, Esquire, of counsel, and the defendant, Natalie Berthold Bredin, by special appearance, was represented by the firm of Dudley, Hoffman and McGowan, George H. T. Dudley, Esquire, 6f counsel.
On July 22, 1955 the Court upon motion of plaintiff's attorneys entered an order directing service of process personally upon the defendant at the place of defendant's residence or, in lieu thereof, that service of process be made by publication of summons herein in a local newspaper, once a week, for four consecutive weeks, as provided by law.
On November 8, 1955 the attorneys for the defendant appeared specially for and on behalf of the defendant "for the sole purpose of contesting the jurisdiction herein on theground that the controversy herein is still pending before the Supreme Court of Florida in which plaintiff herein is appellant from a final decree dated August 4, 1954 in favor of defendant herein;" a copy of which notice of special appearance was served on the attorneys for the plaintiff herein.
It is also disclosed by the record that proof of personal service of summons made on defendant, Natalie Berthold Bredin, at 694 South Amalfi Drive, Pacific Palisades, California, was returned by Deputy United States Marshal Andrew Bazar on November 15, 1955.
At the request of the parties herein the Court granted a hearing on the special appearance of the defendant on November 25, 1955, at which time counsel for the defendant presented a certified copy of a final decree of the Circuit Court, St. Johns County, Florida, dated August 4, 1954, as well as a certified copy of plaintiff's notice of appeal dated September 30, 1954.
Counsel for defendant also presented a photostatic copy of plaintiff's original bill of complaint for divorce, case No. 14644, filed on May 20, 1952, in the Circuit Court, Seventh Judicial Circuit in and for St. Johns County, Florida on the ground of "extreme cruelty" as defined by the statutes of Florida, in which petitioner prayed that the Court enter "an order and decree that the bonds of matrimony heretofore existing between the plaintiff and the defendant be dissolved and plaintiff and defendant be divorced one from the other."
The defendant herein also presented a photostatic copy of her answer and counterclaim filed in the Florida court on December 2, 1952 in which she prayed the Florida court for an award of separate maintenance, as well as the costs of the action including permanent suit money and counsel fees.
The plaintiff filed an answer to defendant's counterclaimin the Florida court on January 16, 1954, denying "generally and specifically each and every allegation of the said counterclaim except insofar as any of the said allegations may be admitted by plaintiff's bill of complaint." A photostatic copy thereof was presented to the court and was made a part of the record herein.
Counsel for the defendant also presented an "Order of Adjudication and Denying Plaintiff's Motions" of February 19, 1954 for reduction of award and other relief, entered by Circuit Judge, Geo. Wm. Jackson, on March 17, 1954.
Also presented to the Court was a copy of an "Order on Defendant's Motion to Strike Plaintiff's Answer To Defendant's Counterclaim and for Entry of Decree Pro Con-fesso," entered on April 15, 1954.
A certified copy of "Notice of Appeal" to the Supreme Court of Florida to review the final decree of the Circuit Court, Seventh Judicial Circuit, in and for St. Johns County, Florida, in chancery, bearing date of August 4, 1954, filed by plaintiff on September 30, 1954, was also presented to the Court.
The record further discloses that proof of service of said notice of appeal was entered on September 30, 1954. A motion to dismiss or quash the appeal was filed by the appellee in November 1955 which motion was denied on November 17, 1955; and on December 8, 1955 the Supreme Court of Florida amended its order of November 17, 1955, more specifically denying appellee delinquent temporary support and maintenance, etc., and the matter in chief was listed on the calendar of the Supreme Court of Florida "for argument on the merits at 9:00 o'clock A.M. April 4th, 1956." Copies of all of these documents have been properly marked and presented by counsel for the defendant.
At the conclusion of the hearing before this Court on November 25, 1955, at which no testimony was introduced,other than the oral argument of counsel, the Court directed the defendant to file a brief not later than December 23, 1955; the plaintiff to file a reply brief not later than January 23, 1956.
On February 21, 1956 the parties advised the Court that the matter was submitted on the briefs filed herein.
The Court has made a study of the points of law raised in the respective briefs and has read the citations furnished in support of the contentions of both sides.
In this connection, the Court wishes to address itself specifically to two salient points. First, has this Court jurisdiction over the subject matter of the action and of the parties thereto and, second, is the decree of the Circuit Court of St. Johns County, Florida, dated August 4, 1954, entitled to full faith and credit in this jurisdiction.
If this Court felt it mandatory to go into the merits of the case, it would rest completely on Burtt v. Burtt, 1922, 59 Utah 457, 204 Pac. 91, and Harding v. Harding, 1905, 198 U.S. 317, 25 S. Ct. 679, 49 L. Ed. 1066, but from the pleadings herein, such a situation is relieved.
[1] This Court is satisfied as to the established principle that when, as in the case of Guggenheim v. Wahl, 203 N.Y. 390, 96 N.E. 726, 729, Kinnier v. Kinnier, 45 N.Y. 535, 6 Am. Rep. 132; Hunt v. Hunt, 72 N.Y. 217, 28 Am. Rep. 129; Lynde v. Lynde, 162 N.Y. 405, 56 N.E. 979, 48 L.R.A. 679, 76 Am. St. Rep. 332; Starbuck v. Starbuck, 173 N.Y. 503, 66 N.E. 193, 93 Am. St. Rep. 631.
[2] This Court is conversant with the well-settled rule that, "as between courts of concurrent jurisdiction, theone whose power is first invoked by the institution of proper proceedings and the service of process acquires the right to adjudicate the controversy to the exclusion of all other courts of concurrent jurisdiction." Beck v. Beck, 48 Ohio App. 105, 192 N.E. 791, 794.
It is not disputed that Further, this court subscribes entirely to the principle that a litigant has no right to trifle with the orders of a court whose...
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