Carnahan v. Carnahan, 5966

• Decision Date: 29 November 1955
• Docket Number: No. 5966,5966
• Citation: 290 P.2d 729,79 Ariz. 371,55 A.L.R.2d 1258
• Parties: , 55 A.L.R.2d 1258 Martha Marie CARNAHAN, Appellant, v. Christian Paul CARNAHAN, Appellee.
• Court: Arizona Supreme Court

Page 729

290 P.2d 729

79 Ariz. 371, 55 A.L.R.2d 1258

Martha Marie CARNAHAN, Appellant, v. Christian Paul CARNAHAN, Appellee.

No. 5966.

Supreme Court of Arizona.

Nov. 29, 1955.

Silver & Silver, and Jack A. Ettinger, Tucson, for appellant.

Barber, Lesher & Dees, Tucson, for appellee.

UDALL, Justice.

This is an appeal from an order denying defendant's motion to vacate a judgment theretofore entered in favor of plaintiff in a divorce action.

The record discloses these facts: on July 22, 1946, the plaintiff, Christian Paul Carnahan (appellee), filed a complaint for divorce against his wife, Martha Marie Carnahan (defendant-appellant), in which there was no specific allegation as to the statutory residence of plaintiff. The parties will be referred to as they appeared in the trial court, i. e. plaintiff and defendant. The complaint merely alleged that 'plaintiff and defendant and each of them are residents of Pima County, Arizona'. A decree of divorce dissolving the bonds of matrimony was entered on August 15, 1946. Apparently no court reporter was present at the trial as there is no transcript of the testimony before us. Inter alia this judgment recites:

'* * * the defendant having been personally served with summons; and the time for answering the complaint herein having expired and her default having been duly entered, witnesses were sworn on behalf of the plaintiff and evidence introduced by plaintiff in support of the complaint; and the Court after considering all of the evidence finds that the allegations of the complaint are true; * * *.'

No appeal was taken from this judgment, nor were any steps (of which the plaintiff was made aware) taken to vacate this judgment until the year 1954, when defendant made a direct attack by filing a motion in the original divorce proceeding to vacate the judgment, basing it upon two grounds, viz.:

1. 'An examination of the Complaint and the Judgment shows that the Court did not have jurisdiction in the cause, there being no allegation and no finding that the parties to the action had been residents of the State of Arizona for one year, and of Pima County for six months, immediately preceding the filing of the Complaint.'

2. (The second reason which charged fraudulent representations on the part of plaintiff has been abandoned.)

At the hearing on this motion counsel for defendant stipulated:

'* * * that Mr. Carnahan was actually a bona fide resident according to the terms and statutes as requiring residence in Arizona for a divorce decree. * * *'

Defendant took the position that the matter must be determined solely by what appeared, or failed to appear, upon the face of the complaint and judgment. She contended the stipulated fact that plaintiff was in truth possessed of the statutory residence requirements at the time the complaint was filed was of no moment and should not be considered by the trial court in determining her motion to vacate judgment. The trial court on May 6, 1954 denied the motion to vacate judgment and this appeal followed.

Section 27-803, A.C.A.1939, expressly provides that:

'An action for divorce shall not be maintained in court unless the plaintiff shall, at the time of filing the complaint, have been an actual bona fide resident of the state for one (1) year, and shall have resided in the county where the action is filed six (6) months next preceding the filing thereof.'

The narrow problem presented by defendant's sole assignment of error and proposition of law raises the question as to whether the failure of the complaint to specifically allege the residence required under Section 27-803, supra, deprived the court of jurisdiction of the cause, and further, whether the judgment rendered on such a complaint, without an express finding by the court of statutory residence, is so fatally defective that it must be set aside for lack of jurisdiction. It is to be noted that basically it is an omission in the record the defendant is relying upon rather than a contention that the jurisdictional residence did not in fact exist.

This court with unanimity has consistently held:

'Under the statute, it is absolutely essential before a person may lawfully file a complaint for a divorce that he shall have been an actual bona fide resident of the state for one year and of the county six months. * * *'

Wynn v. Wynn, 39 Ariz. 580, 8 P.2d 1081, 1082. See also, Chester v. Chester, 69 Ariz. 104, 210 P.2d 331; Clark v. Clark, 71 Ariz. 194, 225 P.2d 486. In the Arizona case of Schuster v. Schuster, 51 Ariz. 1, 6, 73 P.2d 1345, 1347, in denying a collateral attack upon a judgment in a divorce case we laid down this rule:

'The superior court of Maricopa county unquestionably had the power, by its general jurisdiction, to try and determine divorce cases, and to render in such cases judgment settling both the right of divorce and the property rights of the parties. Whether such judgment was correct on the facts, or whether it was based on a valid complaint, is not a question of a lack of jurisdiction, but of the exercise of jurisdiction.'

We have never had occasion to decide the precise question here presented, viz.: whether insufficient allegations of residence are a jurisdictional defect. There is some authority for such a contention. The defendant relies upon the following statement in 17 Am.Jur., Divorce and Separation, section 299:

'Where, as is usually the case, the statutes require that the plaintiff shall have been a resident of the state for a specified time to authorize the court to entertain jurisdiction of the action, the petition or complaint must, as a general rule, contain an allegation showing the residence of the plaintiff within the state...