Foss v. Foss, s. 10508

• Decision Date: 17 December 1968
• Docket Number: Nos. 10508,10490,s. 10508
• Parties: Joseph J. FOSS, Plaintiff, v. June E. FOSS, Defendant.
• Court: South Dakota Supreme Court

Page 354

163 N.W.2d 354

83 S.D. 574

Joseph J. FOSS, Plaintiff, v. June E. FOSS, Defendant.

Nos. 10508, 10490.

Supreme Court of South Dakota.

Dec. 17, 1968.

John E. Burke, Sioux Falls, for plaintiff.

T. R. Johnson and Dennis C. McFarland, of Danforth, Danforth & Johnson, Sioux Falls, for defendant.

MANSON, Circuit Judge.

The appeals ¹ here joined for decision are taken from a decree of absolute divorce granted to June E. Foss on August 18, 1967, in an action begun on August 26, 1965, by service of process upon the said June E. Foss, defendant therein, by the plaintiff, Joseph J. Foss. For convenience and clarity the parties are herein designated as they were in the trial court. The record fails to disclose an answer, but it would reasonably appear that the cause was thereafter tried on the general issue, evidence being submitted to the Hon. George A. Rice. On March 2, 1965, Judge Rice directed a memorandum decision to the contending parties, advising that he found the evidence insufficient to justify a decree for the plaintiff. This memorandum was never implemented by order or otherwise, but the plaintiff was apparently satisfied that his cause had failed since he admittedly stated to defendant that he would go to Nevada or Mexico to secure a divorce if he could not get one in South Dakota.

Whatever his motivation, it is clear that plaintiff thereafter took voluntary steps to abandon his South Dakota residence and domicile and to acquire such in Nevada, where, on August 23, 1966, he commenced an action for divorce against June E. Foss, alleging that the parties to the action had lived separate and apart without cohabitation for more than three years preceding the commencement of the Nevada action. Process in the Nevada action was issued from the District Court for Clark County, Nevada, served by publication in Nevada, mailed to defendant at her Sioux Falls, South Dakota address and personally served on her in South Dakota on or about August 24, 1966.

Stimulated, no doubt, by service of Nevada process, defendant in the South Dakota action secured a stipulation signed by plaintiff's South Dakota attorney, providing that defendant might interpose an amended answer and cross-complaint for divorce, that plaintiff would reply thereto and that the cause might then be brought on for trial at the instance of either party. The amended answer and cross-complaint was served on plaintiff's South Dakota counsel on August 30, 1966 and a reply thereto was served upon counsel for defendant on August 31, 1966. The cross-complaint prayed for divorce on grounds of extreme cruelty, with prayers for property settlement and alimony.

These steps accomplished, the South Dakota action languished through the ensuing fall and winter. Meanwhile, back in Las Vegas, the Clark County District Court, presented with a praecipe of default in the Nevada action, on September 15, 1966, entered a decree of absolute divorce to plaintiff, establishing there as jurisdictional elements that plaintiff, for more than six weeks prior to the date of verification of the complaint and on the date of the decree was a bona fide and actual resident and domiciliary of the State of Nevada, that defendant had been personally served with process, that she made no appearance in that action and that all of the allegations of the complaint were true. The decree in Nevada contented itself with severance of the matrimonial bonds between the parties, no reference therein being made to ancillary matters, although the plaintiff had prayed that the court there determine his obligation for alimony and maintenance.

Made aware of the entry of the Nevada decree, defendant on April 4, 1967, made and served a second amended answer and cross-complaint upon plaintiff's South Dakota counsel, a reply being interposed thereto on April 8, 1967. The issues framed by these latter pleadings were the same as those indicated by the earlier cross-complaint except that the second amendment set up the fact of the Nevada divorce, asking that it be held invalid by the trial court here as being based upon a simulated and fraudulent claim of domicile by plaintiff and further praying for divorce. The reply thereto asserts the validity of the Nevada divorce and asks dismissal of the South Dakota action for divorce, conceding that the South Dakota court might nevertheless maintain jurisdiction for the purpose of making a property settlement and providing maintenance.

These are the issues which came on for trial before the trial court on April 26, 1967. Memorandum decision was entered on June 29, 1967 and findings of fact and conclusions of law were entered, together with a decree granting defendant a divorce upon her cross-complaint on August 18, 1967. The appeal with which we are first concerned is that wherein plaintiff, Joseph J. Foss, asserts that the trial court was without jurisdiction to enter a decree of divorce in favor of defendant, June E. Foss, no appeal being taken nor objection made to those portions of the decree relating to property settlement or allowances.

The proceedings in the Nevada forum were placed in evidence before the trial court by the introduction of authenticated copies of all pleadings and associated papers, no objection being made thereto. In addition to this showing, plaintiff testified at length concerning and in support of, his claim of domicile and residence in Nevada. Countervailing evidence on the part of the defendant consisted of testimony relating to plaintiff's statement that he would go elsewhere for a divorce and an exhibit consisting of an envelope, post-marked May 15, 1967 at Scottsdale, Arizona and addressed to defendant. This was the sum of the evidence going to the jurisdictional ground of domicile as plead by defendant.

Consideration of such evidence, as framed in the pleadings, proceeds from the proposition, basic in our law, that a judgment or decree of a court of one state is entitled to full faith and credit in all other states, in accordance with Article 4, § 1, U.S. Constitution, as elaborated by 28 U.S.C.A. § 1738.

This proposition is subject, in conditions such as are here involved, to judicial examination and the 'foreign judgment' subject to nullification in certain circumstances. The United States Supreme Court, in Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, in affirming the right of a state court to refuse recognition of the judgment or decree of a sister state, sets up as one requisite to such action, a 'finding adverse to the necessary foundation for any valid sister-State judgment * * * amply supported in evidence'. As there applied and here applicable under the pleadings, the only permissible finding which would justify judicial nullification of the Nevada decree would be one which determined that the Nevada domicile of the plaintiff was simulated and fraudulent. No such finding was made in this case.

In the instant case, the only 'finding' which supports the invalidation of the Nevada decree in the trial court appears as Finding of Fact VI. This finding-conclusion reads as follows:

'That when the Defendant amended her pleadings and asked for a divorce in this action, the South Dakota court was the only court having jurisdiction to award the support and alimony requested by both parties, it being the only court having complete and effective jurisdiction of all matters embraced in the South Dakota action and that based upon the facts herein set forth, the Plaintiff's Nevada decree is not...