Englund's Estate, In re, 32682

• Decision Date: 13 December 1954
• Docket Number: No. 32682,32682
• Citation: 277 P.2d 717,45 Wn.2d 708
• Parties: In the Matter of the ESTATE of Alfred ENGLUND, Deceased. Ida DAHLBERG et al., Respondents, v. Pearl ENGLUND, as administratrix, Appellant.
• Court: Washington Supreme Court

Page 708

45 Wn.2d 708

277 P.2d 717

In the Matter of the ESTATE of Alfred ENGLUND, Deceased.

Ida DAHLBERG et al., Respondents, v. Pearl ENGLUND, as administratrix, Appellant.

No. 32682.

Supreme Court of Washington, En Banc.

Dec. 13, 1954.

Rehearing Denied Feb. 8, 1955.

Oliver R. Ingersoll, Ronald W. Sholund, Olympia, for appellant.

O'Leary, Meyer & O'Leary, Olympia, for respondents.

SCHWELLENBACH, Justice.

Alfred Englund died intestate March 5, 1951, in Thurston county, Washington, and appellant, as his surviving spouse, was appointed administratrix of his estate. Ida Dahlberg, sister of the decedent, for herself and other collateral heirs, filed a petition asking that Pearl Englund be removed as administratrix and that she be appointed in Mrs. Englund's stead. The petition alleged that the marriage of Alfred and Pearl Englund was not legal for the reason that Pearl Englund's prior divorce from Chris Tashos was granted by an Idaho court at a time when neither of the parties to the divorce action was domiciled in Idaho.

Pearl and Chris Tashos intermarried in Montana in 1919. In 1921, they moved to the state of Washington. From 1922 until the commencement of the divorce action, they lived together on a farm near Rochester in Thurston county. Pearl met Alfred Englund in 1942, and they began discussing marriage with each other in 1944. She continued living with Chris Tashos on the farm until July 14, 1949, on which date she went to Coeur d'Alene, Idaho, taking with her four suitcases, in which she had her personal belongings, consisting of her clothing, jewelry, pictures, and silver. July 16, 1949, she rented a furnished room in a rooming house on which she continued to pay rent until November 16, 1949. Shortly after her arrival, she consulted a lawyer about obtaining a divorce from her husband. She filed suit for divorce August 29, 1949. Substituted service was obtained on the husband September 14th. September 15th she returned to visit her niece in Rochester, her sister on Whidby Island, and Mr. Englund in Port Angeles. October 5th or 6th she and Mr. Englund went back to Coeur d'Alene where they stayed at a hotel. The divorce hearing was on October 7th, and the decree was entered that day. After the divorce they returned to Port Angeles. October 28th she quitclaimed all of her property to Mr. Tashos.

November 5th or 6th she and Englund again went to Coeur d'Alene where they were married November 7th. Both the marriage license and the marriage certificate gave her address as Olympia, Thurston county, Washington. After the marriage, they returned to Port Angeles where they resided until Mr. Englund's death. At the trial Mrs. Englund testified that it was the intention of her had Mr. Englund to reside permanently in Idaho; that she did not start divorce proceedings here because she wanted to get entirely away from the state of Washington and to start over anew in Idaho. Two days after first arriving in Idaho she wrote her husband advising him that she was going to marry Mr. Englund and that they were going to live over there. August 25th, shortly before the complaint was filed, she wrote a friend that she and Englund were going to settle there.

The trial court found that Mrs. Englund was not domiciled in the state of Idaho at any time during the divorce proceedings. We are unable to say that the evidence preponderates against such finding. Judgment was entered removing Pearl Englund as administratrix, and this appeal follows.

Appellant claims the following assignments of error:

'1. The court erred in allowing respondent to attack the validity of the marriage of appellant and deceased after the death of one of the parties to the marriage.

'2. The court erred in allowing the respondent to collaterally attack the divorce of appellant and Chris Tashos.

'3. The court erred in entering that part of Finding of Fact No. III as follows:

"* * * that the said Pearl Englund at the time of such appointment was not and never had been the wife or the widow of the deceased, Alfred Englund, for the reason that the divorce which the said Pearl Englund obtained from her prior husband, Chris Tashos, in Kootenai County, Idaho was not a valid or legal divorce, and that the said Pearl Englund at the time she entered into a marriage ceremony with the said Alfred Englund was then the wife of the said Chris Tashos.'

'4. The court erred in entering Finding of Fact No. V as follows:

"The court further finds that the said Pearl Tashos, now Pearl Englund, was the wife of Chris Tashos at the time she married the above named decedent; that the said Pearl Englund is not the widow of the deceased, having never been lawfully or legally married to him; and that neither the said Pearl Tashos nor her husband Chris Tashos were domiciled in the State of Idaho at any time during such divorce proceedings or thereafter.'

'5. The court erred in entering judgment removing appellant, Pearl Englund, as administratrix.'

The law is settled in this jurisdiction that a divorce decree obtained in a foreign state by a resident of this state may be attacked collaterally in the courts of this state, and it may be declared void for the reason that the foreign court did not have jurisdiction to enter such decree. Wampler v. Wampler, 25 Wash.2d 258, 170 P.2d 316; Maple v. Maple, 29 Wash.2d 858, 189 P.2d 976. The law is also settled in this jurisdiction that a subsequent marriage to another person by a party to a void divorce is not voidable, but absolutely void ab initio, for the reason that such party had a wife or husband living at the time of the marriage. Beyerle v. Bartsch, 111 Wash. 287, 190 P. 239; Barker v. Barker, 31 Wash.2d 506, 197 P.2d 439.

Before it can be said that the marriage between Alfred and Pearl Englund was void, there must be a determination that the Idaho divorce which she obtained from Chris Tashos was void. Should respondent, for herself and other collateral heirs, strangers to the divorce, be permitted to attack it? The precise question is a matter of first impression in this state. In an exhaustive annotation in 12 A.L.R.2d, commencing at page 717, entitled, 'Standing of strangers to divorce proceeding to attack validity of divorce decree', the annotator points out that there is a hopeless lack of unanimity among the various jurisdictions on this question. He defines the term, 'stranger' 'The term 'stranger' as used in this annotation means any person who is neither a party to the record of the divorce proceedings nor in privity with such a party.'

Crockett v. Crockett, 27 Wash.2d 877, 181 P.2d 180, was an action instituted in Whitman county, Washington, by Franklin Crockett, as administrator of the estate of his mother, Fannie Crockett, deceased, against his father, Miles S. Crockett. He alleged that a final decree of divorce obtained by his father in Whitman county should be set aside because of fraud, and that he be decreed to be the owner of one-half of the property belonging to the parties at the time of the divorce. There was no question in that case involving jurisdiction, or of a void decree of divorce. However, the question did arise as to whether or not the plaintiff, being a stranger to the divorce decree, was entitled to bring the action. We held that he could not. We discussed our prior decisions commencing with Dwyer v. Nolan, 40 Wash. 459, 82 P. 746, 1 L.R.A.,N.S., 551, and including McPherson v. McPherson, 200 Wash. 365, 93 P.2d 428. We said [27 Wash.2d 877, 181 P.2d 187]:

'In the instant case, neither appellant nor any other person had an interest in the subject matter of the divorce action or the property therein involved, either at the time the divorce proceeding was started or at the time the interlocutory or final decree of divorce was entered. The subject of the controversy having been eliminated by the death of Fannie Crockett, appellant, as her personal representative, would have no authority to move in the original action to vacate the decree, nor would he have any authority in this action to attack such decree, either on the theory that he represented the deceased, or on behalf of her heirs.'

In the McPherson case we stated that this court was without authority to reverse, modify, or affirm, an interlocutory decree of divorce after the death of one of the parties to such decree, except where the rights of third parties were involved in the decree itself, and then only for the purpose of adjudicating the rights of such third parties.

The rule is stated in 1 Freeman on Judgments 636 (5th ed.), § 319:

'It must not, however, be understood that all strangers are entitled to impeach a judgment. It is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment. Being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are by law allowed to impeach it whenever it is attempted to be enforced against them so as to affect rights or interests acquired prior to its rendition. * * *'

Respondent calls our attention to section 20, chapter 215, Laws of 1949, RCW 26.08.200:

'A divorce obtained in another jurisdiction shall be of no force or effect in this state if both parties to the marriage were domiciled in this state at the time the proceeding for divorce was commenced.'

The above section is a part of the Uniform Divorce Recognition Act drafted by the commission on uniform laws. It states no new law in this jurisdiction. We have already held that, in a proper proceeding, a divorce obtained in another state by a resident of this state can be held to be void for the reason that the courts of the other state did not have jurisdiction over the person obtaining the questioned decree. But we cannot agree that because section 20 states that such a divorce shall be of 'no force or effect,' such statement should be interpreted to mean that...