Dunn v. Tiernan

• Decision Date: 26 October 1955
• Docket Number: No. 5111,5111
• Citation: 284 S.W.2d 754
• Parties: Burnice H. DUNN, Appellant, v. Peggy Jean TIERNAN and Richard Tiernan, Appellees.
• Court: Texas Court of Appeals

Page 754

284 S.W.2d 754

Burnice H. DUNN, Appellant, v. Peggy Jean TIERNAN and Richard Tiernan, Appellees.

No. 5111.

Court of Civil Appeals of Texas, El Paso.

Oct. 26, 1955.

Rehearing Denied Nov. 16, 1955.

Fryer, Milstead & Luscombe, El Paso, for appellant.

William C. Collins, El Paso, for appellees.

FRASER, Justice.

This is a child custody case. Burnice H. Dunn, appellant, and Peggy Jean Dunn Tiernan, appellee, were married in 1945, and had two children, Beverly Virginia Dunn, four years of age, and Syretta Ann Dunn, eight years of age. By contract in 1952 the mother granted exclusive custody of the children to the father. On February 12, 1953, appellant was granted a divorce in Juarez, Mexico, at a time when he was living in El Paso with the children. Appellant returned to South Carolina with his children where appellee obtained them in June, 1954, after giving appellant her written promise to return the children at the beginning of the school year. The former Mrs. Dunn, who had married Richard Tiernan in February, 1954, brought the children to El Paso and instituted suit in the Thirty-Fourth District Court for their custody. The appellant answered, challenged the jurisdiction of the El Paso District Court, and asserted that he was the proper person to have their custody. The trial Court having overruled appellant's plea to the jurisdiction, tried the case before a jury. The jury verdict was adverse to appellant.

Appellant's first two points are concerned with the action of the trial court in sustaining exceptions to the pleaded misconduct of appellee which appellant asserted occurred prior to the date of the Mexican decree, and excluding evidence of such misconduct by appellee. Appellant had pled and offered to prove acts of misconduct by appellee prior to the Juarez divorce in 1953, but the trail court in sustaining exceptions to such pleading and excluding such evidence held that the Juarez divorce was res adjudicata on the question of appellee's fitness prior to that decree, following thereby the well known Texas rule to that effect. Appellant challenged the validity of this Mexican divorce, and asserted that because neither party had lived in Mexico the Juarez court was without jurisdiction and the decree therefore invalid, and for that reason could not be res adjudicata anywhere. The trial court held that appellant was estopped to challenge the validity of the Juarez decree, and pursuant to this finding excluded the evidence and sustained exceptions to the plea.

We are not concerned here, of course, with the doctrine of full faith and credit clause of the United States Constitution, as same is not applicable to the judgments of foreign countries, nor do we have in this record any evidence of any treaty bearing on this matter.

There are cases holding that ordinarily a foreign divorce obtained through simulated residence is open to attack and its validity may be impeached. Golden v. Golden, 41 N.M. 356, 68 P.2d 928; Kadello v. Kadello, 220 Cal. 1, 29 P.2d 171; Broder v. Broder, 122 Cal.App. 296, 10 P.2d 182; Hanley v. Donoghue, 116 U.S. 1, 6 S.Ct. 242, 29 L.Ed. 535; Burk v. Burk, Tex.Civ.App., 255 S.W.2d 908; Ryder v. Ryder, 2 Cal.App.2d 426, 37 P.2d 1069.

This, however, is not a situation where one who is the victim of a void judgment seeks to set the same aside. Examination of the record reveals that appellant initiated the Juarez divorce and persuaded appellee to enter her appearance through a Juarez attorney; also that he had told appellee they were both now free to remarry; that he considered himself divorced, and at one time entertained the notion of marrying a woman in Durango, Mexico, and apparently did not challenge the validity of the Mexican decree for 22 1/2 months after its rendition.

Examination of the judgment itself shows that the Juarez court apparently had full jurisdiction to render the decree that it did, and we think the trail court was correct in holding appellant estopped from challenging the validity of the Juarez decree. To have permitted him so to do would in effect permit him to take advantage of his own fraud which he perpetrated on the Mexican courts.

This doctrine of estoppel to assert invalidity of a judgment proceeds upon the theory that it would be intolerable to permit the parties to enter into collusion to defraud the court and, each of the parties having enjoyed the fruits of their wrongful conduct, to permit one of them to afterwards assail the judgment collaterally. Moor v. Moor, Tex.Civ.App., 63 S.W. 347; Freeman on Judgments, § 1438.

Some cases have held that the concepts of justice will not countenance an attempt to so repudiate such jurisdiction, particularly when same would involve the unsettlement of domestic relations created under color of the judgment. Bruguiere v. Bruguiere, 172 Cal. 199, 155 P. 988; Loud v. Loud, 129 Mass. 14; Harding v. Harding, 198 U.S. 317, 25 S.Ct. 679, 49 L.Ed. 1066; Kaufman v. Kaufman, 177 App.Div. 162, 163 N.Y.S. 566.

The record in this case has revealed that appellee here, relying on the validity of the Mexican decree, has remarried, and at the time of the trial was expecting a child by her new husband, and that she and her new husband have a comfortable home where the two children here involved have apparently been happy with their mother and step-father. This latter was attested to by several apparently reliable witnesses and neighbors.

Other cases hold that a consent decree is valid and binding on parties consenting, and is open neither to direct appeal nor collateral attack. Certainly the Juarez divorce was a decree procured by and consented to by both appellant and appellee. Nashville, C. & St. L. Ry. Co. v. United States, 113 U.S. 261, 5 S.Ct. 460, 28 L.Ed. 971; Parish v. McGowan, 39 App.D.C. 184. $Other courts have held parties estopped to challenge jurisdiction of the divorcing court under circumstances similar to this one for the above grounds, and further because the party had waited eight or nine months or longer to challenge the validity of the divorce. McNeil v. McNeil, 9 Cir., 170 F. 289; McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647; Bledsoe v. Seaman, 77 Kan. 679, 95 P. 576.

There are other cases holding along these lines, to-wit, that estoppel is created against a party challenging the validity of the foreign divorce which he himself has procured, and especially where in so doing he practiced a fraud on the divorcing court and also where the other party, in reliance upon such divorce, has altered the marital status, and especially where the challenger has waited for many months and has accepted during that period benefits from the challenged decree. Moore v. Hegeman, 92 N.Y. 521; Posten v. Delfelder, 39 Wyo. 163, 273 P. 176; Starbuck v. Starbuck, 173 N.Y. 503, 66 N.E. 193.

Other cases have enunciated the doctrine by emphasizing that estoppel is an equitable procedure and equity should never permit one to profit from his own fraud, especially to the idsadvantage of another. Ellis v. Ellis, 55 Minn. 401, 56 N.W. 1056; Curry v. Curry, 65 App.D.C. 47, 79 F.2d 172; Weber v. Weber, 135 Misc. 717, 238 N.Y.S. 333; Kelsey v. Kelsey, 237 N.Y. 520, 143 N.E. 726.

In the case before us appellant secured the decree he now seeks to declare invalid. Inasmuch as the decree recites on its face that both parties were within the jurisdiction of the court, the parties must have practiced fraud on the divorcing court. Appellant under this decree took or continued custody of the two children, certainly a benefit to him. He told appellee they were both free to marry again, causing her to fully rely on the validity of the decree, and she apparently...