Gardner v. Gardner, 10900

Decision Date06 October 1959
Docket NumberNo. 10900,10900
Citation144 W.Va. 630,110 S.E.2d 495
CourtWest Virginia Supreme Court
PartiesElmer Miller GARDNER v. Minnie Lilly GARDNER.

Syllabus by the Court.

1. 'A direct, specific admission of a fact in a pleading is binding and conclusive on the party making it.' Pt. 4 Syl., Clark v. Clark, 70 W.Va. 428 .

2. So long as a married couple live together as husband and wife, the wife's domicile generally follows that of the husband. But where such persons are domiciled in a county in this State and where the husband leaves the wife with the purpose of discontinuing the marital relationship and establishes a separate domicile in another state, and the wife continues to reside in such county in this State, she remains a resident thereof within the meaning of Code, 48-2-7.

3. Under Section 1, Article IV of the Constitution of the United States, the courts of this State are not required to give full faith and credit to a judgment or decree of a court of record of another state, if it is clearly shown by pleading and proof that such judgment or decree was procured through fraud, or that the court of such other state was without jurisdiction to enter such judgment or decree.

4. 'No valid divorce from the bond of matrimony can be decreed, on constructive service, by the courts of a state in which neither party is domiciled; and the recital in the proceedings of the facts necessary to show jurisdiction may be contradicted.' Syl. Ward v. Ward, 115 W.Va. 429 .

5. 'A judgment or decree rendered in another state is liable to collateral attack for want of jurisdiction in the court that rendered it.' Pt. 1 Syl., Caswell v. Caswell, 84 W.Va. 575 .

6. A husband who fraudulently obtained a divorce in a court of a state in which neither party to the divorce suit was then domiciled is not precluded by estoppel or the 'clean hands' doctrine from asserting the invalidity of such divorce in a suit in this State to annul his subsequent marriage to another woman.

Paul J. Fourney, Beckley, for appellant.

Haynes & Ford, Sheldon E. Haynes, Lewisburg, for appellee.


In this suit in chancery instituted in the Circuit Court of Greenbrier County, Elmer Miller Gardner prays for an annulment of his marriage to Minnie Lilly Gardner on March 20, 1954, on the ground that a divorce he obtained previously in Tennessee from Grace Showalter Gardner, his wife by a former marriage, is void.

By a final decree entered on August 15, 1956, the circuit court annulled the second marriage. This necessarily implied an adjudication that the Tennessee divorce was void. From the final decree, Minnie Lilly Gardner prosecutes this appeal. The parties will be referred to herein as 'plaintiff' and 'defendant', respectively, according to their designation in the lower court.

Elmer Miller Gardner and Grace Showalter Gardner were married in Virginia on January 27, 1918. They lived together as man and wife in that state until July, 1951, when he went to Ronceverte in Greenbrier County, West Virginia, in connection with his employment. There he became acquainted with the defendant. It is reasonably obvious from the testimony that they later contemplated marriage to each other, and discussed the possibility of his obtaining a divorce from Grace Showalter Gardner.

Thereupon, according to plaintiff's testimony, he consulted an attorney and received advice that it would not be possible for him to obtain a divorce in West Virginia, but he learned that another man 'living in the Greenbrier Valley' had obtained a divorce in Tennessee 'under these conditions'. Accordingly, the plaintiff wrote two letters to and had a telephone conversation with B. C. Frassrand, an attorney, whose address was 407-08 Jackson Building, Chattanooga, 2, Tennessee. The two letters were typed by a daughter of the defendant. A letter was mailed by B. C. Frassrand to the plaintiff at Ronceverte in care of the defendant. The letter is dated December 5, 1953, and except for the omission of a portion of the post-script relating to the attorney's fee, the letter is as follows:

'Dear Mr. Gardner:

'As I explained to you over phone yesterday, we have three circuit judges who hear divorce cases, and all uncontested divorce cases are tried on Saturday mornings. These three judges alternate, each taking turns of two weeks or Saturdays each. Today, the 5th, and next Saturday, December 12th., the Judge hearing these uncontested divorce cases is very technical, and often takes over the questioning after the attorneys have finished, and he very often refuses to grant divorces. It depends somewhat on the mood he is in.

'We have two young Judges who leave all questioning up to the attorneys, and are not always trying to find some reason to refuse the divorce. According to the present schedule, one of these two younger Judges will hear the divorce cases on Saturday, December 19th., and that is the day I suggest that you come here for the hearing of your case.

'If possible, you should be at my office as soon as you can on Saturday morning, December 19th., and it will take only a few minutes to get the case over with, provided we are among the first to get to the court house. The court house closes at noon on every Saturday, and for that reason we should be there pretty early. Court opens at 9 o'clock.

'The reason I was holding up answer to your recent letter was in order to determine, if possible, who would hear your case. I will look for you December 19th.

'Yours very truly,

'S/ B. C. Frassrand

'P.S. You must have one witness to corroborate your testimony. * * *'

The plaintiff testified further that on Friday, December 18, 1953, accompanied by Wheeler Weikle, who testified as a witness in the divorce proceedings, he went to Chattanooga, where the two men spent the night. On the following morning, plaintiff went to the office of B. C. Frassrand. Plaintiff testified as follows concerning his conversation with the attorney on that occasion:

'Q. How long, Mr. Gardner, did you have a conference with this attorney, Mr. Frassrand, on the morning of December 19, at his office? A. I would say about fifteen (15) minutes, it might have been more or less.

'Q. It was very brief? A. Yes, sir.

'Q. Was Mr. Weikle with you at that time? A. Yes, he was.

'Q. At the time of your conference with Mr. Frassrand, did the question of your residence come up in the discussion? A. Yes, sir.

'Q. And what advice, if any, did Mr. Frassrand give you in that regard? A. He said that I should suggest some place in Tennessee for my residence. He said I had to be a resident for two (2) years and I told him that I had never been there and he said that he would take care of that. He said I should suggest some place and I told him that I didn't know of any place down there and he wrote in some place and I don't know where it is.

'Q. What did he advise you as to your being a resident of Tennessee for two (2) years? A. He said it wasn't actually necessary to be a resident for two (2) years. He said he would take care of that, that they did it that way down there and they didn't require that you be a resident for two (2) years.'

A copy of the petition for a divorce filed by the plaintiff in the Circuit Court of Hamilton County, Tennessee, was identified by the plaintiff, and made a part of the record of the testimony in the annulment suit in the circuit court. In that petition, duly verified, the plaintiff alleged: '* * * he is a bona fide citizen and resident of Hamilton County, Tennessee, where he has resided for more than two whole years next preceding the filing of this petition for divorce.' The petition for divorce further alleged 'that the defendant is a non-resident of the State of Tennessee, and that the ordinary process cannot be served upon her, and that defendant can only be brought into court by means of publication as required by law in cases of non-residents.'

Notwithstanding the allegations under oath of the petition for divorce in Tennessee, the plaintiff testified that he was never at any time a resident of Tennessee, and that he was in the State of Tennessee only from the evening of December 18, 1953, until after the divorce was granted on the following morning. Plaintiff testified that the proceedings before the court on that morning were extremely brief, but that following such brief proceedings he was granted the divorce which is now in question. Thereafter the plaintiff and his witness returned immediately to Greenbrier County.

On March 20, 1954, the plaintiff and defendant were married to each other at Bristol Tennessee. Following this marriage, they lived together as man and wife at the defendant's home in Ronceverte in Greenbrier County until on or about August 14, 1954. Plaintiff testified that he separated from the defendant on or about that date because he had been advised by one or more attorneys that his Tennessee divorce would not be recognized by the courts of this State, and therefore that the validity of his subsequent marriage to the defendant was questionable.

The plaintiff further testified that he was married to Grace Showalter Gardner at the time of the granting of the divorce in Tennessee; that eight children were born of that marriage; and that 'the law requires' him to pay to her the sum of $80 a month.

A male child was born to the defendant at Lewisburg, in Greenbrier County, on January 2, 1955.

By the final decree entered on August 15, 1956, the Circuit Court of Greenbrier County adjudged that 'the marriage heretofore entered into between the said Elmer Miller Gardner and Minnie Lilly Gardner in the City of Bristol, State of Tennessee, on the 20th day of March, 1954, be and the same is hereby, annulled and declared to be null and void and of no legal effect or binding on either of the parties thereto.' The court further adjudged and decreed that plaintiff was the father of the child born to the defendant on January 2, 1955...

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