Donnell v. Howell

• Decision Date: 23 May 1962
• Docket Number: No. 668,668
• Parties: Viola Richards DONNELL and Husband, Floyd Donnell, v. William R. HOWELL.
• Court: North Carolina Supreme Court

Page 448

125 S.E.2d 448

257 N.C. 175

Viola Richards DONNELL and Husband, Floyd Donnell, v. William R. HOWELL.

No. 668

Supreme Court of North Carolina.

May 23, 1962

Barber & Gardner, by Carroll F. Gardner, Mount Airy, for petitioners appellants.

Blalock & Swanson, by C. Orville Light, Pilot Mountain, for respondent appellee.

PARKER, Justice.

Counsel for the petitioners and respondent stipulated before Judge Phillips that both the feme petitioner and the respondent were residents of Surry County, North Carolina, at the time feme petitioner instituted an action for divorce in the circuit court of Lee County, Alabama, in March 1961. The action was instituted on 3 March 1961. Feme petitioner in her bill of complaint in the divorce action alleged she 'is a resident of the State of Alabama and has been as such time as required by law'--a false allegation according to her stipulation in the instant case before Judge Phillips. Respondent in his answer filed in the divorce case admitted 'the complainant is a bona fide resident citizen of Lee County, Alabama'--a false admission according to his stipulation in the instant case before Judge Phillips. She alleged in her bill of complaint as the ground for divorce 'that on to-wit: February 28, 1960 the Respondent voluntarily abandoned her bed and board without just cause or reason and has remained away from the bed and board of Complainant voluntarily and continuously since said date.' A false allegation according to an unchallenged finding of fact that feme petitioner and respondent lived together as husband and wife until October 1960. The final decree of absolute divorce was entered by the Alabama court on 7 March 1961. Thereafter feme petitioner returned to North Carolina, and married Floyd Donnell in March 1961. She is now a resident of Surry County, North Carolina, and respondent a resident of Stanly County, North Carolina.

The first question for decision is: Did the Alabama court under the laws of the State of Alabama have jurisdiction over the marital status of the parties, when neither was domiciled in Alabama, and when both perpetrated a fraud on that court by falsely representing to it in the bill of complaint and answer that feme petitioner 'was a resident of the State of Alabama and has been as such time as required by law,' when in truth and in fact according to their stipulation before Judge Phillips both feme petitioner and respondent were residents of Surry County, North Carolina, at the time feme petitioner instituted the action for divorce in the Alabama court.

Title 34, section 27, Code of Alabama 1940, 1955 Cumulative Pocket Part, reads:

'For abandonment, twelve months' residence to be proved.--No bill can be filed for a divorce on the ground of voluntary abandonment, unless the party applying therefor, whether husband or wife, has been a bona fide resident citizen of this state for twelve months next preceding the filing of the bill which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.'

Title 34, section 29, Code of Alabama 1940, 1955 Cumulative Pocket Part, reads:

'If defendant a nonresident, a year's residence by plaintiff must be proved. -- When the defendant is a nonresident, the other party to the marriage must have been a bona fide resident of this state for one year next before the filing of the bill, which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.'

The Supreme Court of Alabama said in Gee v. Gee, 252 Ala. 103, 39 So.2d 406, Rehearing Denied 31 March 1949: 'It is firmly established by our decisions that residence in our divorce statutes means domicile.'

In Jennings v. Jennings, 251 Ala. 73, 36 So.2d 236, 3 A.L.R.2d 662, both husband and wife resided in South Carolina. The wife sued in Alabama, and in her bill of complaint alleged she was a resident of South Carolina. The husband appeared and answered, admitting he was a resident of South Carolina and submitted himself to the jurisdiction of the Alabama court. When the case came on for hearing on the merits, the trial judge dismissed the bill on the ground that the court had no jurisdiction. The Supreme Court of Alabama affirmed. In its opinion it quoted Title 34, section 29, Code of Alabama 1940, which we have quoted above, and stated: 'This case involves the power of the legislature to authorize a decree of divorce in this state when the parties are personally before the court, but reside in another state.' In its opinion the Alabama Supreme Court said:

'Jurisdiction, which is the judicial power to grant a divorce, is founded on domicile under our system of law. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366; Sherrer v. Sherrer, 68 S.Ct. 1087, 1097 ; Wilkes v. Wilkes, 245 Ala. 54, 16 So.2d 15. See also The Alabama Lawyer, Volume eight, p. 37. This is true because domicile in the state gives the court jurisdiction of the marital status or the res which the court must have before it in order to act. Nelson on Divorce and Annulment, Vol. 2, p. 632; Schouler Divorce Manual p. 21; Kennan on Residence and Domicile p. 450; Keezer on Marriage and Divorce p. 73 et seq.; 27 C.J.S. Divorce, § 71, p. 633. The domicile of one spouse, however, within the state gives power to that state to dissolve the marriage. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L. R. 1273; neither party here is a resident of Alabama. Jurisdiction of the res is essential because the object of a divorce action is to sever the bonds of matrimony, and unless the marital status is before the court, the court cannot act on that status. Authorities supra.

Furthermore it is recognized that unless one of the parties has a residence or domicile within the state, the parties cannot even by consent confer jurisdiction on the courts of that state to grant a divorce. 17 Am.Jur. p. 273.

''* * * The principle dominating the subject is that the marriage relation is so interwoven with public policy that the consent of the parties is impotent to dissolve it contrary to the law of the domicil. * * *' Andrews v. Andrews, supra [188 U.S. 14, 23 S.Ct. 244].

'While we appreciate the need for comity between the states and feel that a state can have no legitimate concern with the matrimonial status of two persons who do not reside within its territory, why cannot the legislature make the enactment in which we are here concerned? To this we say that the legislature of a state cannot confer on the courts of that state a power which is not within the power of the state to confer on the legislature. 19 C.J. p. 26, 27 C.J.S., Divorce, § 71. In The People v. Dawell, 25 Mich. 247, 12 Am.Rep. 260, 273, the court aptly said:

''* * * Will it be seriously claimed that any State might enact a law that citizens of other States might be divorced at pleasure in its courts, by simply applying in person for the decree? Would not every other State be likely to protest, with emphasis and indignation, that any such law was an invasion of their sovereignty, and an attempt, by indirect methods, to control the domestic relations of their citizens? But if such a law could not be valid, how can it be truly said, that a court, whose authority cannot possibly be broader than that of the State which created it, had 'jurisdiction of the parties by the voluntary appearance of the defendant,' when such voluntary appearance could no more bring the subject-matter of the suit within the jurisdiction of the court than in ejectment it could bring the land from a distant state, and enable the court to pass upon the right to its possession. * * *'

'An act to be valid must be within the legislative jurisdiction of the enacting state. 59 C.J. p. 21; Foster v. Glazener, 27 Ala. 391. Here the statute seeks to act on a status which is beyond the boundaries of the state. That it cannot do.'

In Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725, filed 30 March 1961, Helen Hartigan filed a bill for divorce in the circuit court charging her husband, John Hartigan, with voluntary abandonment. She alleged in the bill she was a bona fide resident of Birmingham, Jefferson County, Alabama, and had been for more than one year next preceding the filing of the bill, and that respondent was a resident of the same county. Respondent filed an answer and waiver in which he admitted the jurisdictional facts, but denied the other material allegations of complainant, and agreed that the case 'may be carried forward to its final determination and decree of divorce issued without other notice to respondent.' He signed the answer and waiver in the presence of a witness. The divorce decree incorporated a property settlement and payment of alimony by respondent to complainant, based upon an agreement between them purporting to have been signed by both parties and filed with the bill and answer. On 17 June 1960 John Hartigan filed a petition in the circuit court of Jefferson County praying for a modification of the 1954 divorce decree so as to eliminate the requirement that he pay Mrs. Hartigan alimony of $60 per week, due to certain financial grounds as changed circumstances. On 7 and 8 July 1960 Mrs. Hartigan filed an answer asking enforcement of the decree, and a petition for citation of contempt on the ground he was delinquent on his alimony payments. The proceeding was heard before Judge Bailes. In the hearing before Judge Bailes the following facts were established without objection Mrs. Hartigan testified that she had never resided in Alabama and had never been in Alabama before she instituted her divorce action...