Cummiskey v. Cummiskey

• Decision Date: 17 February 1961
• Docket Number: 38018,37987,37971,Nos. 37970,s. 37970
• Citation: 107 N.W.2d 864,259 Minn. 427
• Parties: Pauline Marie CUMMISKEY, Appellant, v. Herbert John CUMMISKEY, Respondent. Herbert J. CUMMISKEY, Respondent-Appellant, v. Pauline M. CUMMISKEY, Appellant-Respondent.
• Court: Minnesota Supreme Court

Page 864

107 N.W.2d 864

259 Minn. 427

Pauline Marie CUMMISKEY, Appellant, v. Herbert John CUMMISKEY, Respondent.

Herbert J. CUMMISKEY, Respondent-Appellant, v. Pauline M. CUMMISKEY, Appellant-Respondent.

Nos. 37970, 37971, 37987, 38018.

Supreme Court of Minnesota.

Feb. 17, 1961.

Syllabus by the Court

1. Where defendant was not personally served with process in the jurisdiction of the forum but received notice by substituted service and did not appear in the proceedings, a divorce decree may be subjected to collateral attack in another state. Where, however, the jurisdictional facts as to residence were litigated in the court in which the decree of divorce was rendered, the decree may not be attacked collaterally in another jurisdiction with respect to such facts. The jurisdictional fact of domicile in the divorce-granting forum, having been litigated and determined by judgment of the court, becomes res judicata, and by force of the full faith and credit clause it may not be questioned collaterally in another jurisdiction.

2. The court has continuing jurisdiction to determine changes in custody after a divorce has been denied if at the time of denying the divorce it made some determination as to the disposition of the children. Where, as in the case before us, the divorce action was dismissed and no order was made relating to custody of the children which continued the jurisdiction of the court, the trial court could not in the absence of a new proceeding with notice and hearing afforded the adverse party make a valid order with reference to that subject.

3. Notice and opportunity to be heard, unless waived, are required in proceedings for modification of orders, judgments, or decrees in divorce relative to the custody of minor children, regardless of whether provision is made by statute for such notice or hearing.

Johnson & Johnson, Mankato, for Pauline Cummiskey.

K. M. Krost, Mankato, for Herbert J. Cummiskey.

MURPHY, Justice.

We have before us two appeals growing out of divorce and custody proceedings extending over many years. The husband, Herbert Cummiskey, in the court below sought by an action for a declaratory judgment to vacate and set aside a decree of divorce secured by his wife in the State of Arkansas. He appeals from an order of the lower court denying his motion to amend the findings or in the alternative for a new trial on the question of whether the Arkansas divorce is valid. His wife, Pauline, is appealing from a denial by the lower court of her motion for amended findings or a new trial on the issue of the validity of an ex parte order secured by her husband in Minnesota granting custody of the minor children to him.

The parties were married in Florida in 1944. They have three minor children--two boys who are 14 and 16 and a girl who is 12. In August 1950, after they had separated, the wife instituted an action for divorce. At that time they were residents of Minnesota. The divorce was granted, but later the decree was set aside and a new trial was ordered. On retrial in 1953 the court found that the wife was not entitled to a divorce, and judgment of dismissal was entered. Later she instituted an action for separate maintenance. She dismissed this action in August 1953 and about September 1 of that year left Minnesota for Little Rock, Arkansas, taking the children with her. She later testified that she moved to Arkansas to obtain 'peace of mind' and possibly to get a divorce, but denied that she did not then intend to make Arkansas her permanent home. After arriving in Arkansas she consulted an attorney. She started one action for divorce which she dismissed. In April 1954, however, after having been domiciled in that state for the statutory period, she instituted a second action alleging that she and her husband had been living separately and apart without cohabitation for the immediately past 3 consecutive years, which is grounds for divorce in Arkansas. Her husband was notified by mail later in April 1954, after which he went to Arkansas and employed attorneys in Little Rock to appear specially to contest the jurisdiction of the Arkansas court. A motion for dismissal was filed alleging that his wife was not a bona fide resident of Arkansas but resided in and was domiciled in the State of Minnesota. On June 10, 1954, the Arkansas court found that the husband had appeared specially by counsel only for the purpose of contesting jurisdiction. The court found that it had jurisdiction, granted the divorce, and gave custody of the children to the wife.

The wife returned to Minnesota in July 1954 and about two and a half years later she married one Mike Madsen, with whom she had been keeping company since she and her husband had separated. The children have been with the wife substantially all of the time during these proceedings.

The court below found that the judgment decreeing divorce in the Arkansas action was entitled to full faith and credit in this state. In a memorandum the trial court indicated that he believed there was substantial evidence which was inconsistent with an intent on the part of the wife to establish a bona fide residence in Arkansas, but since jurisdiction was litigated in the Arkansas court that issue was res judicata.

1. The principal contention of the husband is that the trial court erred in holding that the decree of divorce granted by the Arkansas court was entitled to full faith and credit in this state. He contends that the wife never acquired a bona fide domicile in the State of Arkansas and that, since notice of the Arkansas proceeding was given to him by substituted service, he should be permitted to attack the divorce collaterally in this state and to show that his wife resided in Arkansas temporarily only for the purpose of securing her divorce.

At the outset it may be observed that jurisdiction of a court to decree a divorce is based on two fundamental requirements which must be satisfied before it can lawfully act: (1) It must have before it a party who is actually domiciled within its jurisdiction, and (2) it must have jurisdiction of the defendant by procedural due process. Zenker v. Zenker, 161 Neb. 200, 72 N.W.2d 809; Davis v. Davis, 259 Wis. 1, 47 N.W.2d 338, 339.

It was formerly thought, under authority of Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, that a decree of a state in which only the plaintiff was a resident and in which the parties had never cohabited or had their matrimonial domicile was not entitled to recognition in the courts of other states under the full faith and credit clause of the Federal Constitution, where the defendant was served only constructively. ¹ Subsequent decisions of the United States Supreme Court, however, have given a more literal interpretation to the application of the full faith and credit clause to decrees of divorce. In the case of Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, it was held that a divorce decree, though rendered solely upon constructive notice against a nonresident defendant, is entitled to full faith and credit where plaintiff had acquired a bona fide domicile in the state granting the divorce. In the second case of Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, it was held that a divorce decree rendered upon constructive service against a nonresident defendant is not entitled to full faith and credit where the plaintiff has not acquired a bona fide domicile in the state where the divorce is granted. The application of the full faith and credit clause to various facets of migratory divorce actions has been discussed by the United States Supreme Court in Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518; Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, 1 A.L.R.2d 1355; Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376; and Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. While it may be said that these authorities are controlling only as to their particular facts, nevertheless certain general rules may be gleaned from them which are applicable to the case before us: (1) The validity of a decree of divorce, where defendant was not personally served with process in the jurisdiction of the forum but received notice by substituted service and did not appear in the proceedings, may be inquired into in the courts of another state, and under such circumstances the decree is subject to collateral attack. (2) Where, however, the jurisdictional facts as to residence were litigated in the court in which the decree of divorce was rendered, the decree cannot be attacked collaterally in another jurisdiction with respect to jurisdictional facts. The jurisdictional fact of domicile in the divorce-granting forum, having been litigated and determined by a judgment of the court, becomes res judicata, and by force of the full faith and credit clause it may not be questioned collaterally in another jurisdiction. See, also, Sheridan v. Sheridan, 213 Minn. 24, 4 N.W.2d 785.

It is the contention of the husband here that the jurisdictional fact of domicile has not been litigated. He concedes that he did appear in the proceedings pending in the State of Arkansas by retaining a firm of attorneys who took a deposition of his wife with reference to the character of her residence in the State of Arkansas. He then instructed his attorneys to file a motion to dismiss his wife's action on the ground that she was not domiciled in the State of Arkansas and was in fact a resident of Minnesota and domiciled there. As a further ground for dismissal, he alleged his wife's unsuccessful attempts to secure a divorce in Minnesota. The motion recites that defendant was appearing specially for the purpose of dismissing the complaint for lack of jurisdiction.

It does not...