Depper v. Depper

• Decision Date: 04 March 1969
• Docket Number: No. 2,CA-CIV,2
• Citation: 451 P.2d 325,9 Ariz.App. 245
• Parties: Billie D. DEPPER, Appellant, v. Mattie L. DEPPER, Appellee. 571.
• Court: Arizona Court of Appeals

Page 325

451 P.2d 325

9 Ariz.App. 245

Billie D. DEPPER, Appellant, v. Mattie L. DEPPER, Appellee.

No. 2 CA-CIV 571.

Court of Appeals of Arizona.

March 4, 1969.

Garven W. Videen, Tucson, for appellant.

Herbert E. Williams, Tucson, for appellee.

KRUCKER, Judge.

The question presented for determination of this appeal by this court is: Did the Arizona court have continuing jurisdiction in the original divorce action to make an order respecting the custody of the minor child, Brenda?

The undisputed facts surrounding this appeal are brief and somewhat interesting.

Appellee, Mattie L. Depper, filed action for a divorce against the appellant, Billie D. Depper, in the Superior Court of Pima County, Arizona, in action No. 74782, on August 7, 1962. A decree of divorce was entered on November 9, 1962.

On December 13, 1962, Billie married one Lucille, and they are at this time husband and wife.

Mattie moved to the state of Florida in August, 1963, and through some power of persuasion, induced Billie to again marry her, the ceremony being performed in the state of Georgia in December of 1963. Billie was, at the time, and still is, married to Lucille.

In the year 1966, appellee, Mattie Depper, filed action against Billie Depper for a divorce in the Circuit Court, Third Judicial Circuit, in and for the County of Columbia, Florida, action No. 6892. This decree of the Florida court was amended by court orders dated January 12, 1967, January 27, 1967, and June 27, 1967. The amendments concerned custody of the children, giving Billie custody of the two minor children, Frederick Dean and Edward Carl Depper. It ordered that custody of the minor child, Brenda Alta Depper, remain with the mother, Mattie L. Depper, with visitation privileges vested in Billie for the summer months of each year from June 15 to August 15.

There is no dispute as to custody of the two boys, Frederick and Edward. Billie had custody of Brenda in Tucson, Arizona, for the summer months of 1967, and the child was enrolled in school as he did not return her to Florida at the end of the summer.

Mattie came to Tucson for the purpose of taking custody of the child, Brenda. Billie filed in the Superior Court of Pima County, in action No. 74782, a petition for a restraining order and an order modifying the decree to obtain custody of Brenda. Mattie filed a motion to quash this petition on the grounds that the Arizona court had no jursidiction to enter the restraining order and order to show cause for the reason that the Florida court had jurisdiction over the subject matter by virtue of the Florida decree and subsequent orders modifying that decree.

Hearing was held on December 15, 1967, and the court granted Mattie's motion to quash the petition. The order was entered December 29, 1967. From this order, Billie takes this appeal. One additional fact that should be mentioned is that Billie Depper did spend some time in Florida and moved into the same household with Mattie L. Depper. At this same time, he had his wife, Lucille, with him and did not live with Mattie as husband and wife. Mattie and Billie did purchase real property in Florida as husband and wife.

The order of the trial court which granted appellee's motion to quash was based upon a finding that the decree of the Arizona court entered in cause No. 74782, and dated November 9, 1962, had been terminated by the remarriage of appellant and appellee which was performed in Georgia in 1963. The Arizona decree having terminated, the trial court found that the continuing jurisdiction of the Arizona court ¹ had expired. The trial court gave full faith and credit to the finding of the Florida Court in its decree of July 1, 1966, that the relation of husband and wife then existed between appellant and appellee. On the foregoing bases, the trial court determined that Pima County Superior Court cause No. 74782 had terminated, and that therefore, it had no jurisdiction to entertain the petition to modify the decree.

Although no case from our Supreme Court has so held, nor do any of our statutes so provide, it appears to be a sound rule of law that a remarriage entered into between the parties to an earlier divorce operates to determine the continuing jurisdiction of the court in which the prior divorce was granted, both as to the proprietary interests of the parties and as to the custody and support of the minor children, if any. Lockard v. Lockard, Ohio Com.Pl., 102 N.E.2d 747, 63 Ohio Law Abst. 549 (1951); McDaniel v. Thompson, 195 S.W.2d 202 (Tex.Civ.App.1946); Jenkins v. Followell, 262 P.2d 880 (Okl.1953); 27B C.J.S. Divorce § 323 h, at 730.

However, before the above-stated proposition may be applied, there must be a remarriage between the parties to the divorce, and we construe the term 'remarriage', in this context, to mean a valid and operative reunification of the parties as husband and wife.

Our first consideration shall be limited to the effects of the 1963 Georgia marriage between appellant and appellee, demonstrated by the record to be bigamous.

An interesting choice of law problem might have arisen in this appeal concerning the effects of the remarriage in Georgia were it not for the fact that in the three jurisdictions having any nexus with that marriage, the rule of law to be chosen is substantially the same. The law in each jurisdiction provides that where two individuals enter into a marriage, and where one of them, or both, has a spouse then living and from whom no divorce has been obtained, then the subsequent marriage is void, a nullity. In re Estate of Milliman, 101 Ariz. 54, 415 P.2d 877 (1966); Porter v. La Fe,68 So.2d 602 (Fla.1953); Kicklighter v. Kicklighter, 217 Ga. 54, 121 S.E.2d 122 (1961).

We hold that the Georgia marriage between appellant and appellee was a nullity, and, therefore, it could not by itself operate to determine the continuing jurisdiction of the Arizona court under its decree in Pima County cause No. 74782.

We shall next consider the effect to be given to the Florida decree of July 1, 1966, purporting to grant a divorce to these parties, and awarding custody of the minor children involved. That decree specifically found that 'the relation of husband and wife' existed between the parties...