Ex parte Aufill, 4 Div. 934

• Decision Date: 28 August 1958
• Docket Number: 4 Div. 934
• Court: Alabama Supreme Court
• Parties: Ex parte Velva M. AUFILL.

Page 897

104 So.2d 897

268 Ala. 43

Ex parte Velva M. AUFILL.

4 Div. 934.

Supreme Court of Alabama.

Aug. 28, 1958.

W. G. Hardwick, Dothan, for appellant.

W. R. Martin, Ozark, for appellee.

STAKELY, Justice.

John Stuart Aufill, a Captain serving in the army at Fort Rucker, Alabama, filed his suit in the Circuit Court of Dale County, Alabama, in Equity, seeking a divorce and other relief against Velva M. Aufill (the petitioner here).

Velva M. Aufill entered a special appearance in the Alabama Court and filed a special plea alleging that prior to the institution of the suit in Dale County, Alabama, which was the 26th day of January, 1957, she had filed on September 17, 1956, a suit for divorce against John Stuart Aufill in the State of California in and for the County of San Mateo and that Aufill, after service of summons and complaint on him in Alabama, filed in the California Court a plea in abatement, alleging that she and Aufill were not residents of California but residents of Alabama.

Petitioner further alleged in her special plea that the California Court had jurisdiction of the parties and the cause and further that Aufill had appeared in the California Court and had the jurisdictional question resolved against him on the introduction of proof by both sides and thus had had his day in court and ought not now to be heard again and further that Alabama is bound to recognize the valid order of her sister state, the State of California.

Aufill by reply to petitioner's special plea alleged fraud by petitioner on the California Court. He alleged that on September 15, 1956, Velva M. Aufill swore falsely to the jurisdictional averments in the bill in the California Court to the effect,

'That for one year last past, and next preceding the commencement of this action, plaintiff has been and now is a bona-fide resident of the State of California, and for more than three months last past and next preceding the commencement of this action, plaintiff has been and now is a bona-fide resident of the County of San Mateo.'

The Circuit Court of Dale County heard evidence on the special plea of Velva M. Aufill filed in the Circuit Court of Dale County and the reply of Captain Aufill thereto. This evidence may be summarized as follows, although, as will appear, all of this evidence need not now be considered.

The petitioner offered in evidence authenticated records of the State of California in and for the County of San Mateo in the case of Velva M. Aufill, Plaintiff, v. John Stuart Aufill, Defendant, Case No. 73228, as follows:

1. Summons and Complaint filed September 17, 1956, seeking divorce and other relief.

2. Certificate of Service on Defendant dated September 24, 1956, by the Sheriff of Dale County, Alabama.

3. Plea in Abatement to the jurisdiction filed October 29, 1956, with attached affidavit of Miley C. Orr of Dale County, Alabama.

4. Affidavit of Aufill filed December 11, 1956, claiming he was a resident of Alabama.

5. Minutes of Court proceedings reflecting affidavits and evidence offered in support of plea in opposition to the plea in abatement and Court's ruling thereon dated December 17, 1956, denying plea in abatement. These minutes show there was introduced as evidence the testimony of Petitioner and Exhibits:

No. 1 (Certificate of Registration)

No. 2 (Last Will and Testament)

No. 3 (Letter from Department of Cosmetology)

No. 4 (Letter from Department of Cosmetology)

No. 5 (Letter from Department of Motor Vehicle).

6. Notice of Ruling on Plea in Abatement filed December 21, 1956, with certificate that notice had been regularly mailed to William R. Martin on December 18, 1956.

7. Plea claiming rights under Soldiers and Sailors Relief Act of 1940 [50 U.S.C.A.Appendix, § 501 et seq.] filed on January 7, 1957.

8. Interlocutory Decree of Divorce filed April 3, 1957, granting relief to Petitioner.

Captain Aufill testified substantially as follows: He was a native of Arkansas and went into the armed forces in World War II. On June 17, 1942, he married Velva M. Aufill in the State of Arkansas. He made a home for his wife and himself in Arkansas and in Missouri, then he was ordered to overseas duty and he carried his wife to the State of California and rented a home for his wife and family to reside therein while he was overseas and out of the United States. He was discharged from World War II service in the month of August 1946 and joined his wife and family in California. He lived and worked at a number of jobs in California until December 14, 1951, when he was called back to active military service and left California for Fort Lewis, Washington.

During the time he lived in California, between August 1946 and December 14, 1951, on September 14, 1950, he registered to vote in San Mateo County, California. However on December 31, 1952, his voting registration was cancelled by the County Clerk of the Board of Supervisors for nonvoting.

He bought a house in California so his family could be assured of a home within which to live during the time he was in the army and during his service overseas in Korea. He went overseas to Korea in the early part of 1952. He was rotated or returned to the United States on May 12, 1953, with orders to report to Fort Sill, Oklahoma. He sold the house in California in August of 1953, and on August 29, 1953, he left California for Fort Sill, Oklahoma. He arranged for his wife and family to join him there shortly thereafter which they did. After he arrived at Fort Sill his wife and family joined him at Lawton, Oklahoma (Fort Sill) and they lived as a family unit there for nearly two years.

He was then transferred to Fort Rucker, Alabama. With his wife and children he arrived in Alabama on or about October 20, 1954. He rented a house in Dothan, Alabama, where he and his family resided together as a family unit. In addition to renting a house in Dothan he bought automobile tags for his cars and bought a driver's license for his wife. He opened up a joint bank account for himself and his wife and he opened up various charge accounts for himself and his wife. He sent his children to the public schools of Alabama and on December 17, 1956, he became a registered voter of Dale County, Alabama.

From October 20, 1954, to February 15, 1956, he and his wife and children lived together as a family unit, until following domestic troubles between himself and his wife, Mrs. Aufill put him out of the family home, locked him out of the home and told him she did not wish any longer to live with him as his wife.

On or about August 17, 1956, Velva M. Aufill without his knowledge or consent, put all their furniture and family goods in storage in Dothan, Alabama. She gave up the hosue and took all the money in the common back account. She took one family automobile and left with the children for California. She was in California before he ever knew she had even left Alabama at all. While she was living with him as his wife, she formed an associated with another officer stationed at Fort Rucker. Her association with the other officer brought on the family trouble between himself and his wife, which culminated in her ordering him out of the family home in Dothan.

The Circuit Court of Dale County on a hearing on the special plea of petitioner and the reply of Aufill, denied petitioner's special plea.

This is an original petition in this court by Velva M. Aufill for a writ of mandamus to the Honorable George Wallace as Judge of the aforesaid Court to require him to vacate and set aside the decree entered as aforesaid. The case is submitted here on the petition for mandamus and the demurrer and answer of Judge George Wallace as respondent.

I. It is insisted that the present matter should not be reviewed by mandamus because the questions here involved can be ultimately reviewed on appeal. This court has held that mandamus will not ordinarily be granted if the matter complained of, including a ruling on a plea in abatement, can be ultimately presented to the appellate court through the medium of an appeal from a final decree. Ex parte Brooks, 264 Ala. 674, 89 So.2d 100; Ex parte Little, 266 Ala. 161, 95 So.2d 269. And it has further been held that expense and inconvenience are not sufficient to make an exception to the aforesaid general rule. Ex parte Brooks, supra.

However, exceptions to the general rule to which we have referred, are mentioned in Brittain v. Jenkins, 263 Ala. 683, 83 So.2d 432. One of the exceptions is that in the sound discretion of the court the writ may be employed to review the ruling in divorce cases on a plea in abatement raising the question of venue, the theory being that there is a public interest involved in such cases. Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510; Ex parte Davis, 249 Ala. 221, 30 So.2d 648.

In the Weissinger case, supra [247 Ala. 113, 22 So.2d 514], for example, this court concluded that 'the weight of the evidence strongly supports the plea in abatement,' and granted the writ.

Accordingly we shall proceed to review the ruling of the Dale County Circuit Court by way of mandamus.

II. It is settled that where the defendant appeared in the foreign court and by plea put in issue the plaintiff's allegation as to domicile, introduced evidence to show it false, and attempted to have the court sustain his plea, the finding of the court that the plaintiff was a bona fide resident and that it had jurisdiction of the cause, is conclusive upon the defendant as res adjudicata of the question of jurisdiction. Such finding under the rule of full faith and credit as set forth in the Constitution of the United States, cannot be impeached in the courts of any other state. Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 752, 93 L.Ed. 957; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 209, 87 L.Ed. 279, 143 A.L.R. 1273; Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518. In the last cited case it was held that...