Christopher v. Christopher
| Decision Date | 08 September 1944 |
| Docket Number | 14922,14925. |
| Citation | 31 S.E.2d 818,198 Ga. 361 |
| Parties | CHRISTOPHER v. CHRISTOPHER (two cases). |
| Court | Georgia Supreme Court |
Rehearing Denied Oct. 7, 1944.
Syllabus by the Court.
1. An assignment of error on exceptions pendente lite or on rulings therein complained of is sufficient when the final bill of exceptions shows that exceptions pendente lite were duly filed and certified in the trial court and the contents thereof are recited in the final bill of exceptions or a copy thereof appears in the transcript of the record.
(a) The assignments of error, attacked by the motion to dismiss and strike, assign error on rulings to which exceptions pendente lite are shown by the bill of exceptions to have been duly filed and certified in the trial court, copies of these exceptions appearing in the record brought to this court, and such assignments are sufficient. Accordingly, the motion to dismiss and strike on the ground that the bill of exceptions contains no specific assignment of error on the exceptions pendente lite is without merit and is denied.
2. The 'full faith and credit' clause of the Federal constitution has no application to a judgment or decree obtained in a foreign country, and comity will be applied only in a case where the laws and judicial proceedings of a foreign jurisdiction do not involve anything immoral contrary to public policy, or violative of the conscience of this State.
(a) The evidence showing that the petitioner, a married woman fraudulently obtained from her husband a decree of divorce in Chihuahua, Mexico, which was null and void because of lack of jurisdiction of the parties by the court rendering the same such decree of divorce is contrary to the public policy of this State and will not be recognized as valid under its comity.
(b) By reason of the existing undissolved marriage with her first husband, she was incompetent to contract marriage with another, and her purported marriage to the defendant after such Mexican divorce was null and void. Not being his wife, she was not entitled to a divorce, alimony, or attorney's fees, as sought in the present action, and the trial court erred in overruling the general grounds of the defendant's motion for new trial.
3. A void judgment of a foreign country, obtained by fraudulent representations as to residence, may be sttacked in any court in this State and by any person whenever material to his interest.
(a) The public policy of this State can not be circumvented by any action or agreement of individuals, and prevents recognition of a decree of divorce fraudulently obtained in a foreign country in a court without jurisdiction of the parties. Hence, the fact that the defendant here encouraged or collaborated with the petitioner in obtaining from her first husband, by fraud, a void decree in a foreign country, would not in an action for divorce against him, estop him from attacking such decree as void and against the public policy of this State.
4. The rulings in the two preceding headnotes dispose of all other issues raised by the record as dealt with in the corresponding division of the opinion, except that no opinion is required or expressed as to the admissibility of certain evidence which was offered in support of the ground of cruel treatment, and to which complaint is made in a special ground of the defendant's motion for new trial.
Statement of Facts by DUCKWORTH, Justice:
Mrs. Elizabeth Chase Christopher filed an action for divorce against Dean Christopher on the grounds of cruel treatment and habitual intoxication, and seeking temporary and permanent alimony and attorney's fees. The defendant filed an answer denying the substantial allegations of the petition; and setting up that the relationship of husband and wife did not exist between him and the petitioner for the reason that at the time of the alleged marriage the petitioner had a living undivorced husband, and therefore, as a matter of law, was incapable of contracting a valid marriage with him; and alleging further that, after the separation between him and the petitioner, he learned for the first time that the alleged divorce of the petitioner from her former husband was illegal, void and of no effect, and therefore his said marriage with the petitioner was likewise void and of no legal effect, and in fact and in law amounted to a fraud on him. Subsequently, he filed a paper denominated a plea to the jurisdiction, which as amended alleged that the alleged marriage relation between him and the petitioner does not exist and did not exist at the time of the institution of the present action by her; that at the time of the alleged marriage between the petitioner and himself she had a living undivorced husband, and therefore was not capable of contracting marriage with the defendant; and that the pre-existing marriage had continued undisturbed; that the petitioner represented herself as having been divorced from her previous husband at the time the defendant entered into the purported marriage with the petitioner; but that said purported divorce was and is null and void and of no effect, and was a fraud upon the defendant because of the total absence of jurisdiction of the court in granting the same; that at the time of the alleged marriage between the petitioner and the defendant, to wit, on October 21, 1933, the petitioner's lawful husband, Dr. Arthur L. Whitmire, was in life and a resident of New Orleans, Louisiana; that the petitioner represented that she had divorced her previous husband, and the defendant, relying upon such representations, entered into the marriage relation with the petitioner; that the alleged divorce between the petitioner and her former husband was obtained by her in the civil court of the First Instance, Bravos District, Chihuahua, Mexico, which said court did not have jurisdiction to try the case for the reason that neither of the parties was a bona fide resident of said district, State, and Country, and the petitioner did not have her domicile therein, and therefore the said court could not render a valid decree of divorce between the parties; that the husband of the petitioner is, at the time of the filing of the amendment to the plea, and was, at the time of the separation between the petitioner and the defendant herein, alive and a resident of New Orleans, Louisiana; that the void divorce hereinbefore referred to amounts to a legal fraud upon the courts of the States of Louisiana and Georgia and upon the defendant herein, and this defendant was not advised by competent authority as to the status and legal effect of said void divorce until after the filing of the petition by the petitioner herein; that the defendant has not lived with the petitioner as husband and wife since being advised of the legal effect of the alleged Mexican divorce; that, as a matter of law, the petitioner is not the wife of the defendant herein for the reason that she has a living undivorced husband, and therefore can not contract a second valid marriage. At a hearing on April 22, 1943, before one of the judges of the superior court of Fulton County, temporary alimony was granted to the petitioner, but the question of attorney's fees was not passed on but left for decision at a later date by the judge presiding in the Domestic Relations division of the court.
To the special plea of the defendant, the petitioner filed general and special demurrers. She also filed an answer and special plea of estoppel to the purported plea to the jurisdiction filed by the defendant, in which answer and special plea the petitioner denied the allegations of the defendant as to the invalidity of the Mexican divorce and also the other allegations of the defendant. She set up that the defendant proposed marriage to her at the time the divorce suit against her former husband was pending in Louisiana; that, because under the laws of that State several years would be required to obtain a divorce, and the defendant was desirous of hastening the conclusion of the divorce so that he might marry her, and according to her present best information and belief, was desirous of furnishing himself a possible ground to void the marriage to him in the event the petitioner sued him for alimony at some future date, he not only suggested but constantly and repeatedly urged that she obtain a Mexican divorce. As a basis for such repeated requests, the defendant exhibited to her an article which, according to her best recollection he had found in the Time Magazine, and which gave an account of a new law, passed in the State of Chihuahua, Mexico, authorizing the grant of a divorce in a much shorter time than that required under the laws of Louisiana; and he assured her with great earnestness and conviction that a Mexican divorce would be legal and binding in this country, as well as in Mexico or elsewhere, and insisted to her and their mutual friends that she obtain such a divorce so that he and the petitioner could be married immediately, and stated that he was sick and in urgent need of her immediate loving care. The defendant then and there urged her to persuade her father to write to an attorney in El Paso for the purpose of securing a Mexican divorce; even going so far as to dictate to the petitioner letters to be sent to such attorney, and offering to pay the cost of the divorce. Acting solely upon his advice and overwhelming influence, the petitioner complied with his wishes, and upon obtaining her final decree she exhibited the same to him, who had not only approved but directed her every action in obtaining the same and knew every detail in regard thereto, and who forthwith proposed an immediate marriage. The defendant made all arrangements for their immediate marriage after said divorce was obtained,...
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