Frey v. Frey, 5539.

• Decision Date: 27 June 1932
• Docket Number: No. 5539.,5539.
• Parties: FREY v. FREY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

61 App. DC 232, 59 F.2d 1046 (1932)

FREY v. FREY.

No. 5539.

Court of Appeals of the District of Columbia.

Argued June 2, 1932.

Decided June 27, 1932.

Mark P. Friedlander, of Washington, D. C., for appellant.

Tracy L. Jeffords, of Washington, D. C., for appellee.

Edwin D. Detwiler and Jean M. Boardman, both of Washington, D. C., amici curiæ.

Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices.

GRONER, Associate Justice.

This is an appeal from a decree of the Supreme Court of the district declaring the marriage of appellant and appellee to have been void. A statement of the facts found by the trial court, somewhat condensed, is as follows:

Appellant, Margaret Frey, then domiciled in Virginia, married Richard R. Allen in Arlington county in that state in 1920. They removed to the District of Columbia, and have continuously resided here ever since. In 1921 appellant left Allen, and thereafter maintained adulterous relations with appellee, Ethelbert Frey. In 1924 Allen brought suit in the District of Columbia for divorce from appellant, and named Frey as co-respondent. Frey later induced Allen to dismiss this suit in order that Allen's wife (appellant) might obtain a divorce in Virginia for desertion. In 1925 the Virginia court granted a divorce on that ground.

The trial court found that the Virginia divorce was fraudulent and void and that appellee Frey "devised the plan by which such fraud was practiced, and * * * aided, assisted, and advised plaintiff * * * in the practice of such fraud. The fraud consisted in the fact that the suit was collusive; in the fact that plaintiff — as she and defendant Frey well knew — was not then domiciled in Virginia, and had not been domiciled therein for more than a year prior to the beginning of that suit; and in the further fact that plaintiff was not an actual resident of Arlington County, Virginia, and had not had her residence therein for several years immediately prior to the institution of the suit; and in the fact that both plaintiff and defendant * * * intended that perjured testimony should and would be given to obtain the decree in the Virginia court; and in the further fact that the husband Allen had a complete defense to the suit brought by his wife in Virginia; and that it was agreed between him and defendant Frey that said defense would be concealed from the Virginia court."

A year and a half later appellant and appellee were married. Allen contracted a second marriage in the middle of 1926, and has continued since then to live with the woman he married and by whom he has had two children.

The present suit was begun by Margaret Frey for limited divorce and maintenance. Ethelbert Frey answered and by cross-bill asked for annulment of the marriage. The decree of the lower court ascertained that the marriage between Margaret Frey and Ethelbert Frey in 1927 was void, and declared the same annulled, vacated, and set aside, on the authority of Simmons v. Simmons, 57 App. D. C. 216, 19 F.(2d) 690, 54 A. L. R. 75. In that case we held that in a proceeding to annul a void marriage the rule of pari delicto and the equitable principle of "clean hands" are inapplicable because in such cases the state becomes a third party. Admittedly the only difference between that case and this is that there the rights of innocent third parties were not involved. In this case the court below found that Allen, appellant's first husband, had a valid cause of divorce against his wife in the District of Columbia, and was induced by appellee, who is a lawyer, to dismiss that suit on the understanding that a valid decree of divorce could be obtained in a Virginia suit brought on behalf of his wife. His second marriage was in good faith, and two children, who are still infants, have been born as a result of this marriage. The property rights of the innocent second wife and children of Allen, as well as the marital status of the wife and legitimacy of the children, are said to be involved. In such circumstances we should not, if there were an alternative, be disposed to extend the doctrine announced in Simmons v. Simmons, supra.

Undoubtedly it is true that a divorce granted in any state according to its laws by a court having jurisdiction of the cause and of both the parties is valid and effectual everywhere, but a divorce obtained by a person legally domiciled in one state who leaves that state and goes into another solely for the purpose of obtaining a divorce and with no purpose of residing there permanently, is invalid, and the state of bona fide residence may forbid the enforcement within its borders of a decree of divorce so procured. Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. Ed. 366. And this is true even though the decree of divorce recites facts sufficient to give the court jurisdiction. Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299. The underlying reason for this is perhaps nowhere better expressed than by Mr. Justice Field in Maynard v. Hill, 125 U. S. 190, 211, 8 S. Ct. 723, 729, 31 L.Ed. 654, where he said: "Other contracts may be modified, restricted, or enlarged, or entirely...