Didier v. Didier, 7836

• Decision Date: 22 December 1969
• Docket Number: No. 7836,7836
• Citation: 230 So.2d 436
• Parties: Ellen H. DIDIER, Plaintiff-Appellant, v. Homer W. DIDIER, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 436

230 So.2d 436

Ellen H. DIDIER, Plaintiff-Appellant, v. Homer W. DIDIER, Defendant-Appellee.

No. 7836.

Court of Appeal of Louisiana, First Circuit.

Dec. 22, 1969.

Rehearing Denied Feb. 2, 1970.

Writ Refused April 3, 1970.

Sylvia Roberts, Baton Rouge, for plaintiff-appellant.

James A. George, Baton Rouge, for defendant-appellee.

Before LANDRY, SARTAIN and ELLIS, JJ.

SARTAIN, Judge.

Mrs. Ellen H. Didier (appellant) instituted suit in The Family Court for the Parish of East Baton Rouge, Louisiana Seeking a divorce from her husband (appellee) on the grounds of having lived separate and apart for a period in excess of two years. Appellee filed a peremptory exception of res judicata on the grounds that he had obtained a divorce from appellant in Arkansas on August 10, 1965 . The trial judge sustained the exception and dismissed appellant's suit from which judgment she now appeals.

There are actually two issues before us: The first issue is whether or not the divorce obtained by appellee in Arkansas is valid and entitled to full faith and credit in Louisiana. The second issue arises from the fact that appellant's original petition set forth an alternative demand that in the event the Arkansas decree is recognized then that portion of the decree awarding her alimony of $100 per month should be made 'executory' including the fixing of accumulated arrearages from March, 1968 to date.

We are of the opinion that the decision of the trial judge recognizing the Arkansas divorce and sustaining the peremptory exception of res judicata is correct and should be affirmed. However, appellant's suit should not have been dismissed in its entirety, thus depriving her of her right to have the alimony portion of the decree enforced in Louisiana. On this latter point, counsel for appellee readily concedes that the matter should be remanded for this purpose.

The recognition of divorce decrees of one state by another state is governed by many considerations. As a basic proposition the authority of a court to exercise jurisdiction in an action for divorce is dependent upon the domicile of one or both of the parties . It is not unusual for one state to refuse to give full faith and credit to a decree of another state, when the record is amply clear that the party obtaining the divorce was never in fact domiciled in the court granting the divorce. Our courts have on numerous occasions expressed the view that it had the right to inquire into the circumstances which purportedly satisfied the domiciliary requirements of a court of a sister state. See Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) and cases cited therein.

In the recent case of Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966) we find what has been termed by some as a change in the law. In Welch Mr. Justice McCaleb, as author of the opinion, set forth an exhaustive review of the cases dealing with the recognition by courts of one state of a judgment of divorce rendered in a sister state. The facts in the cited case were not in dispute. Plaintiff instituted a tort action as the alleged surviving widow of Calvin J. Boudreaux. Defendants countered with the proposition that Mrs. Boudreaux was not the lawful wife of Mr. Boudreaux for the reason she was never legally divorced from her first husband, Owen J. Mire. The basis for this allegation is that Mrs. Boudreaux (then Mrs. Mire) never resided in Mississippi and that Mr. Mire though signing a waiver of process and service which he further acknowledged as an appearance, clearly evidenced that the Mississippi court lacked jurisdiction over both parties and the divorce decree is void ab initio and not entitled to full faith and credit. The respective positions and the authorities relied upon by each litigant are set forth in the opinion as follows: (192 So.2d 356, 357)

'Defendants contend they are entitled to collaterally attack the Mississippi divorce decree on jurisdictional grounds under our holdings in Navarette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946) and Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) inasmuch as plaintiff, in her deposition taken on the motion for summary judgment, admitted that she was never a resident of Mississippi but had gone there for a few days only to testify in the divorce proceedings. Defense counsel further argue that, under the rulings of the Supreme Court of the United Stated in the two cases of Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273 (1942) and 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366 (1945) the issue of jurisdiction of the court that rendered the decree can always be the subject of judicial inquiry by the court of another jurisdiction and, when, as here, it has been established that Mississippi lacked jurisdiction over the subject matter because of non-residence of both parties, the decree of divorce is void ab initio and not entitled to Full Faith and Credit.

Plaintiff, on the other hand, declares that the judicial pronouncements cited in support of Navarette v. Laughlin have been markedly altered by later jurisprudence and that the instant case is distinguishable from Eaton v. Eaton. She asserts that the situation here is identical in principle with Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951) and, therefore, the Mississippi decree is not subject to collateral attack. Plaintiff's position is that the divorce decree, being valid under Mississippi law and invulnerable to collateral attack in that State by reason of the personal appearance of Mire in accordance with the laws of Mississippi, is entitled to the complete portection of the Full Faith and Credit Clause under the rulings (in addition to Johnson v. Muelberger) in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L .Ed. 1429, 1 A.L.R.2d 1355 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct . 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376 (1948) and Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951).'

Mr. Justice Summers dissented and emphasized that the power of courts to grant decrees of divorce is founded upon domicile and in the cases relied upon by the majority were not apposite because in each case the question of domicile had been "squarely litigated in a truly adversary proceeding' in the state rendering the decree'.

Following Welch and in Gay v. Gay, 203 So.2d 379 (3d La.App., 1967), our brethren of the Third Circuit expressed the opinion that our Supreme Court in Boudreaux v. Welch felt bound by the language of the United States Supreme Court in Johnson v. Muelberger, supra, and quoted therefrom as follows: (203 So.2d 379, 381)

"'When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or strangers in the rendering state, it cannot be attacked by them anywhere in the Union. The Full Faith and Credit Clause forbids."'

Accordingly, in Gay it was determined that Mrs. Gay was not given an opportunity in the trial court in Louisiana to show that she could successfully attack a Florida decree which the Louisiana district judge recognized in sustaining Mr. Gay's exception of res judicata.

In Reeves...