Corkum v. Clark

• Decision Date: 28 May 1928
• Citation: 161 N.E. 912,263 Mass. 378
• Parties: CORKUM v. CLARK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 378

161 N.E. 912

CORKUM

v.CLARK.

Supreme Judicial Court of Massachusetts, Worcester.

May 28, 1928.

Appeal from Superior Court, Worcester County; Henry T. Lummus, Judge.

Suit by Mary E. Corkum against Anna P. Clark. Decree of dismissal, and plaintiff appeals. Reversed and rendered.Charles T. Flynn, of Fitchburg, for appellant.

John F. McGrath, of Fitchburg, for appellee.

RUGG, C. J.

The plaintiff in this suit in equity seeks to have both the divorce decree from her obtained by her late husband, Aubrey D. Corkum, in the state of Washington, and his subsequent marriage to the defendant declared null and void and to have herself declared the widow of said Aubrey. There is a prayer for an injunction to restrain the defendant from representing herself to be the widow of Corkum and from claiming, as his widow, any money or property as aid, pension, or compensation. There is also a prayer for an accounting and for general relief.

By her answer the defendant admitted the allegations of one paragraph of the plaintiff's bill and as to the ten other paragraphs neither admitted nor denied the allegations, but required the plaintiff to prove the same. This was not a proper answer. The defendant in a suit in equity is required to answer fully, directly and specifically each allegation in the bill and to avoid any general denial of its averments. The essentials of a proper answer are specified in Equity Rule (1926). They have been explained fully in recent decisions. Burke v. McLaughlin, 246 Mass. 533, 537, 538, 141 N. E. 601;Volpe v. Sensatini, 249 Mass. 132, 144 N. E. 104;Piper v. C. L. Hayden Co., 254 Mass. 317, 319, 150 N. E. 155. The case, however, has been argued without regard to this defect and is therefore considered as if there had been a proper joinder of issues.

Findings of fact were made by the trial judge. Thus it appears that on January 24, 1916, Aubrey D. Corkum, a widower, having seven children, married the plaintiff, both being domiciled at Fitchburg in this commonwealth. They lived together as husband and wife in that place until he went to war in April, 1917. He went to France and returned from the war in 1918, lived for several days with the plaintiff on two occasions in the fall of 1918, and was then transferred to Camp Dodge, near Des Moines, Iowa, remaining there until September, 1920, except for a short visit to his wife in Fitchburg in September, 1919. Two children had been born of this marriage and these with a majority of the seven children of Corkum by his first wife continued to live with the plaintiff in Fitchburg. In the fall of 1919 Corkum commenced divorce proceedings against the plaintiff in the district court for Polk county, Iowa, which in August, 1920, were dismissed after notice and hearing. In September, 1920, Corkum was ordered to Camp Lewis, Tacoma, Washington, by his military superiors. Before September 14, 1920, he became domiciled in Tacoma. He had no justifiable cause for living apart from the plaintiff and she has been guilty of no matrimonial fault. He intentionally deserted her without cause in or before September, 1920.

The statutes of Washington then in force required that the complainant should have been a resident in that state for at least one year prior to bringing a proceeding for divorce. On September 14, 1921, Corkum filed a complaint against the plaintiff in the superior court in Pierce county, Washington, falsely alleging cruelty and other matrimonial misconduct on the part of the plaintiff, and praying for a divorce. It has been found that, by the law of Washington then in force, when a defendant in a divorce case could not be found within the state, the plaintiff or his attorney was required, as a prerequisite to service by publication in a newspaper, to make an affidavit that he believed that the defendant was not a resident of the state and that he had deposited a copy of the summons and complaint in the post office directed to the defendant at his place of residence, unless it was stated in the affidavit that such residence was not known to the affiant. Said Corkum filed such affidavit sworn to by him, in which he declared that the present plaintiff ‘is not a resident of the state of Washington,’ but that her ‘last known place of residence’ was ‘at Des Moines, Iowa’; and his attorney made an affidavit that he had deposited a copy of the summons and complaint in the post office, directed to the present plaintiff at Des Moines, Iowa. In fact, her domicil and residence was, and from the time of her marriage has always been, at Fitchburg in this Commonwealth. Corkum knew that when he made the affidavit and he made it in bad faith and with intent that the present plaintiff should receive no notice and be unable therefore to contest the suit. As a consequence the present plaintiff did not appear to defend and was defaulted on motion on November 17, 1921. An interlocutory decree was entered in favor of Corkum on November 19, 1921, and on May 22, 1922, the final decree of divorce was entered. Corkum marrying the respondent on the same day. Corkum and the defendant continued to live as husband and wife in the state of Washington until July, 1924, when they removed their residence and domicil to Worcester in this commonwealth. He died in this commonwealth in August, 1924. The present plaintiff has not been guilty of laches or any acts constituting an estoppel, and is in no way barred by her own conduct from contesting the validity of the Washington divorce.

These facts as found by the trial judge must be accepted as true, because no evidence is reported. Chapman v. Chapman, 224 Mass. 427, 432, 113 N. E. 359, L. R. A. 1916F, 528;Commissioner of Banks in Re Cosmopolitan Trust Co., 249 Mass. 144, 147, 144 N. E. 73;Sullivan v. Roche, 257 Mass. 166, and cases cited at 169, 153 N. E. 549.

I. The primary question is, What effect ought to be given to the decree of divorce entered in the court of the state of Washington? That decree was entered by a court of superior and general jurisdiction under the statutes and decisions of the state of Washington, Remington's Compiled Stats. of Washington (1922 Ed.) § 15; State v. Superior Court, 14 Wash. 203, 206, 44 P. 131. Commonly there is a presumption in favor of regularity of the proceedings of any court of general jurisdiction. Robinson v. Freeman, 236 Mass. 446, 128 N. E. 718;Applegate v. Lexington & Carter County Mining Co., 117 U. S. 255, 269, 6 S. Ct. 742. That presumption, however, does not extend to a case where it appears from the record that the defendant was a nonresident and did not voluntarily appear in court, and it does not appear that service of process was made upon him within the state. Rand v. Hanson, 154 Mass. 87, 89, 28 N. E. 6,12 L. R. A. 574, 26 Am. St. Rep. 210;Tucker v. Columbian National Life Ins. Co., 232 Mass. 224, 228, 122 N. E. 285. The record of the Washington court shows that the defendant in that suit, the plaintiff in the present suit, was at all times a nonresident of the state of Washington, that no personal service was made upon her in that state, and that she did not appear in the court of that state. It further appears from the facts as found that the matrimonial domicil of the plaintiff and Corkum was at all times within this commonwealth and not elsewhere, and was never in the state of Washington. The present plaintiff remained in this jurisdiction. In these circumstances it is settled that the plaintiff is not bound by the decree entered by the Washington court but may attack it collaterally and show that it has no effect on her. The courts of this commonwealth are not bound to give that judgment full faith and credit under the Constitution of the United States. Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1;Andrews v. Andrews, 176 Mass. 92, 93, 57 N. E. 333, affirmed in 188 U. S. 14, 39, 23 S. Ct. 237, 47 L. Ed. 366;German Savings & Loan Society v. Dormitzer, 192 U. S. 125, 128, 24 S. Ct. 221, 48 L. Ed. 373;Perkins v. Perkins, 225 Mass. 82, 113 N. E. 841, L. R. A. 1917B, 1028. The plaintiff may show the invalidity of the Washington decree as to any right in issue on the present record.

II. Where there has been no personal service upon, or voluntary appearance by, the nonresident spouse, it is essential to the validity for any purpose of a divorce granted upon ex parte proceedings by the court of the state of the domicil of the complaining spouse, when not the state of matrimonial domicil, that the notice or other substituted service of the court process upon the nonresident spouse must be by such publication or other substituted notice as is required by the laws of the state of the court granting the divorce. Failure to comply with such law as to service upon the nonresident spouse affects the jurisdiction of the court and renders wholly void a decree of divorce entered in a cause dependent upon such substituted service.

It is not open to doubt that, upon the facts found in the case at bar and already narrated, a fraud was perpetrated by Corkum upon the court of Washington in that the allegations of his complaint for divorce contained willfully false statements as to the place of residence of the present plaintiff. Consequently the notice to the defendant in that suit, the present plaintiff, was not in conformity to the laws of the state of Washington. The notice was not sent to her at the place well known by Corkum to be her place of residence and her domicil. The result is that under authoritative decisions the decree in that suit was void as to the present plaintiff and the courts of this state are not required to give to it any faith or credit. Cheely v. Clayton, 110 U. S. 701, 4 S. Ct. 328, 28 L. Ed. 298;Thompson v. Thompson, 226 U. S. 551, 562, 33 S. Ct. 129, 57 L. Ed. 347;Grannis v. Ordean, 234 U. S. 385, 393, 34 S. Ct. 779, 58 L. Ed. 1363. This controlling principle is recognized by the courts of Washington. Burns v....