Du Pont v. Du Pont

• Court: Supreme Court of Delaware
• Writing for the Court: WOLCOTT and TUNNELL, JJ., and BRAMHALL; WOLCOTT
• Citation: Du Pont v. Du Pont, 90 A.2d 468, 47 Del. 231, 8 Terry 231 (Del. 1952)
• Decision Date: 12 June 1952
• Parties: , 47 Del. 231 DU PONT v. DU PONT.

Page 468

90 A.2d 468

8 Terry 231, 47 Del. 231

DU PONT v. DU PONT.

Supreme Court of Delaware.

June 12, 1952.

Arthur G. Logan and Stephen E. Hamilton, Jr., of Wilmington, for appellant.

James R. Morford and William Marvel, of Wilmington, for appellee.

WOLCOTT and TUNNELL, JJ., and BRAMHALL, Vice Chancellor, sitting.

WOLCOTT, Justice.

The complaint for annulment was filed in the court below by the husband (hereinafter referred to as the plaintiff) and contested by the wife (hereinafter referred to as the defendant).

The complaint is filed under 1935 Code, §§ 3497(c) and 3497(d). Two grounds are asserted for annulment of marriage; first, that, by reason of the invalidity of a Texas divorce decree, the defendant had a husband living at the time of her marriage to the plaintiff, and, second, that the plaintiff was induced to marry the defendant by reason of fraud.

The defendant answered the complaint and at the close of the taking of testimony on behalf of the plaintiff moved for a dismissal. Pursuant to Rule 41(b) of the Superior Court, a ruling on the motion to dismiss was deferred and testimony was taken on behalf of the defendant. Thereafter, the court granted the defendant's motion to dismiss. A review of the judgment of dismissal is now sought by the plaintiff.

The court below made no findings of fact but assumed for the purpose of ruling on the motion to dismiss that the facts asserted by the plaintiff were correct. The uncontradicted portion of the facts asserted by the plaintiff may be briefly summarized as follows: ¹

The defendant, in 1934, married one Wigley in Waco, Texas, and lived there with him until 1936 when she left with her mother for California and, eventually, New York to pursue a theatrical career. In New York, she met one Abbott who sponsored her career and gave her large sums of money periodically until 1948. Wigley, still residing in Texas, contributed to her support until the middle of 1940.

In the spring of 1940, the defendant returned to Texas and, in June of that year, divorced Wigley in a Texas court of divorce jurisdiction. Wigley appeared generally in the divorce action but did not defend it. The asserted ground for divorce was cruelty. Wigley is still living.

The defendant then returned to New York and, in April, 1947, met the plaintiff, who was then domiciled with his first wife in Delaware. He continued to see the defendant and, in about a month, they had sexual relations with each other at a resort, which continued regularly and frequently thereafter. The plaintiff and defendant discussed marriage and, in October, the plaintiff left his first wife. Thereafter, the plaintiff obtained the impression, from his observation of the defendant and her statements to him, that she was of good moral character; was living on her inheritance and divorce settlement; that her divorce had been obtained on the ground of Wigley's impotence; and that she loved him, the plaintiff, and wanted to be his wife. The plaintiff, nevertheless, had her background investigated.

In July, 1948, the plaintiff's first wife divorced him in Wyoming, and, on November 20, 1948, the plaintiff and defendant were married in New York, establishing shortly thereafter their matrimonial domicile in Delaware. Quarrels over money and family matters followed in due course and the plaintiff left the home on July 28, 1950. In October of that year, the defendant commenced an action for separate maintenance against the plaintiff. In the course of discovery proceedings in that action, the plaintiff acquired information which led him to believe that the defendant's Texas divorce decree was invalid and that his marriage to the defendant had been procured by fraud. He, therefore, commenced the instant cause for annulment in the Superior Court.

The foregoing facts are stated to be uncontroverted. With respect, however, to the allegations of fact supporting the asserted grounds for annulment, the contentions of the parties are in direct conflict. The court below, for the purposes of the defendant's motion to dismiss, assumed that the controverted allegations should be considered as having been established by competent evidence. We will do the same, although in fairness to the defendant, it should be stated that she denies the truth of the assertions made by the plaintiff in these respects.

The court below states the factual assertions made by the plaintiff with respect to the Texas divorce decree of the defendant in the following language:

1. That the defendant had abandoned her residence in Texas before filing her petition for divorce.

2. That the ground of cruelty was false and was arrived at by the defendant and Wigley by collusive agreement.

3. That at the hearing on the divorce petition, the defendant lied as to her residence and as to the merits of the case.

The court below states the factual assertions made by the plaintiff with respect to the charge that the defendant induced the plaintiff to marry her by fraud in the following language:

1. That during the period 1938 to 1948, the defendant engaged in meretricious relationships with several men, and that the defendant concealed these facts from the plaintiff.

2. That, during that period of time, the defendant lived on money received by her from men with whom she had meretricious relations, and that the defendant concealed these facts from the plaintiff.

3. That the defendant married the plaintiff for his money and not because she loved him, and that her pre-marital representations of love and affection were false and fraudulent.

4. That the defendant knew her Texas divorce decree was procured by fraud and collusion, and that the defendant concealed these facts from the plaintiff.

The foregoing assumptions of fact raise two questions of law for our decision, viz., (1) May the plaintiff impeach collaterally the Texas decree divorcing the defendant from her first husband? and, (2) May a decree of annulment be entered by the Superior Court of the State of Delaware upon the assumed facts? We will consider these questions in the order in which they are stated.

The attempt of the plaintiff to impeach in this proceeding the Texas divorce decree involves the Full Faith and Credit Clause of the Federal Constitution, art. 4, § 1. The Supreme Court of the United States, in Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552, announced the rule that one state must give full faith and credit to the divorce decree of another state when the parties to the divorce were personally served or entered personal appearances in that proceeding, and must prevent collateral attack upon the decree if the state in which the decree was entered would not permit collateral attack upon it to be made in its courts.

Plaintiff contends that by reason of the more recent case of Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, the Johnson case is no longer controlling with respect to the credit which must be accorded in this state to the defendant's Texas divorce decree. If the plaintiff is correct in his contention that the Cook case is a limitation upon the rule announced in the Johnson case, that limitation is only that collateral attack upon a wife's out of state divorce can be made by a putative husband when the first husband had not been served personally or entered a personal appearance in the out of state divorce action. This limitation, if it be one, is not applicable in the case before us since the defendant's first husband appeared generally in the divorce action in Texas.

It follows, therefore, that the Texas divorce decree of the defendant must be sustained by this state against collateral attack unless a collateral attack by the plaintiff upon it would be permitted by the courts of Texas. We must determine, therefore, what the law of Texas is with respect to collateral attack upon judgments of Texas courts.

Under the law of Texas, a stranger to the judgment will be permitted to make a collateral attack upon a judgment of a Texas court only if the stranger had a pre-existing right at the time the judgment was entered which has been prejudiced by its entry. Sanger v. Tramwell, 66 Tex. 361, 1 S.W. 378; Urban v. Bagby, Tex.Com.App., 291 S.W. 537; National Loan & Investment Co. v. L. W. Pelphrey & Co., Tex.Civ.App., 39 S.W.2d 926. Therefore, since the plaintiff at the time the Texas divorce decree of the defendant was entered had no pre-existing right prejudiced by that decree, Texas would not permit him to attack it collaterally.

Plaintiff concedes that this is the Texas law and that the Texas court entering the divorce decree had jurisdiction of the subject matter of the suit and of the parties, but contends that the decree is void by reason of fraud and collusion, and that Texas would permit collateral attack upon it even by a stranger.

The plaintiff contends that the defendant gave perjured testimony in proof of the alleged ground for divorce, i.e., cruelty. If it be assumed that such testimony is fraud, and that the failure of the defendant's first husband to contest the divorce action, knowing it to be false, is collusion, still the fraud and collusion relate not to the jurisdiction of the Texas court but solely to the existence of a bona fide cause of action sought to be asserted in that court. The plaintiff argues, therefore, that fraud and collusion relating solely to the merits of the cause of action sought to be asserted make any decree entered by reason thereof void and subject to collateral attack anywhere. The argument, however, is contrary to the law of Texas. In Texas, collateral attack on a Texas judgment is permitted only when the judgment under attack is absolutely void. Higgins v. Bordages, 88 Tex. 458, 31 S.W. 52; Wilson v. King, Tex.Civ.App., 148 S.W.2d 442; Johnston v. Stephens, Tex.Civ.App., 300 S.W. 225. And a Texas judgment is absolutely void only when a lack of jurisdiction in the court entering it is disclosed by the record of the...