Hamm v. Hamm

• Decision Date: 02 May 1947
• Citation: 204 S.W.2d 113
• Parties: HAMM v. HAMM et al.
• Court: Tennessee Supreme Court

Page 113

204 S.W.2d 113

HAMM v. HAMM et al.

Court of Appeals of Tennessee, Western Section.

May 2, 1947.

Certiorari Denied by Supreme Court August 1, 1947.

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Appeal from Chancery Court, Shelby County; John E. Swepston, Chancellor.

Suit for divorce by Harold T. Hamm against Sara Nell Hamm and others. From decree granting complainant an absolute divorce, the Divorce Proctor appeals.

Affirmed.

Evans, Exby, Moriarty & Creson, of Memphis, for complainant-appellee.

Poston Cox, Divorce Proctor, and Sam F. Cole, Deputy Divorce Proctor, both of Memphis, for appellant.

ANDERSON, Presiding Judge.

The record presents an important question concerning the right of one who has obtained a divorce in another state to challenge the validity of the decree on the ground that neither of the parties was domiciled in the divorce forum at the time the divorce suit was instituted. The case is here on a technical record and the question arises in this way: the bill was filed by the complainant in the chancery court of Shelby County, Tennessee, on March 26, 1946, against the defendant, Sara Nell Hamm, seeking a divorce on the ground of cruel and inhuman treatment. The defendant being allegedly a nonresident, service was had by publication. Complainant charges in his bill a course of conduct on the part of the defendant which makes out a case of cruel and inhuman treatment within the meaning of the divorce statute, and in addition avers that "in April, 1944, a decree of divorce was filed in the chancery court of Poinsett County, Arkansas, in a case styled Harold Hamm vs. Sara Nell Hamm, the validity of which is questionable". The prayer is for an absolute divorce, and that the custody of a minor daughter be left with the defendant, and for general relief. Pro confesso was taken against the defendant, but the bill was answered by the Divorce Proctor. The answer sets up several reasons why the relief sought should not be granted. Summarized, these are, so far as necessary to be noticed, as follows: (1) because the complainant obtained a divorce from the defendant in the chancery court of Poinsett County, Arkansas, in April, 1944; and (2) because the decree of the Arkansas court having been rendered at the instance of the complainant, he is estopped to rely upon its invalidity, and if that decree be the result of an unlawful or fraudulent act on the complainant's part, he does not come into the chancery court of this state with clean hands, and is therefore in no position to invoke the aid of that tribunal; and (3) because by reason of the Arkansas decree the issues are res judicata.

The case was heard by the chancellor upon the original bill, the answer of the Divorce Proctor, the pro confesso against the defendant, and the testimony of the witnesses examined in open court. The result was a decree granting the complainant an absolute divorce on the ground of cruel and inhuman treatment. From this decree the Divorce Proctor appealed, as he was authorized to do by the Acts of 1945, Chapter 109. The findings of the chancellor, incorporated in his decree, in substance are as follows:

1. That neither the complainant, Harold T. Hamm, nor the defendant, Sara Nell Hamm, was at any time a resident citizen of, or domiciled in, the State of Arkansas within the meaning of the divorce laws of that State, and that neither the complainant, Harold T. Hamm, nor the defendant, Sara Nell Hamm, was a resident citizen of, or domiciled in, Poinsett County, Arkansas, or any other county in Arkansas, within the meaning of the divorce laws of that state at the time of the filing of the divorce suit therein by the said complainant, Harold T. Hamm, against the said defendant, Sara Nell Hamm, nor at the time of the entry of the decree of divorce therein in favor of the complainant, Harold T. Hamm.

2. That the proceedings and decree of divorce in the case of Harold Hamm, complainant, v. Sara Nell Hamm, defendant, in the Chancery Court of Poinsett County, Arkansas, are null and void, and the said Chancery Court of Poinsett County, Arkansas, did not have jurisdiction of either party to the litigation or the subject matter thereof, and the said parties were then bona fide resident citizens of, and domiciled in, Shelby County, and had been for several years prior thereto.

3. That the only relief sought by the said complainant, Harold Hamm, in his suit for divorce in Poinsett County, Arkansas, against the defendant, Sara Nell Hamm, was an absolute divorce from the said defendant, Sara Nell Hamm, and that the only relief which he seeks in this action in this court is an absolute divorce from the defendant, Sara Nell Hamm.

4. That the original bill for divorce filed in this cause by the complainant, Harold T. Hamm, is also in the nature of a bill to declare his marital status.

5. That the marital status of the parties remained unchanged by the entry of the decree of divorce in the chancery court of Poinsett County, Arkansas.

6. That the facts charged in the original bill in this cause are true and that the defendant, Sara Nell Hamm, is guilty of such cruel and inhuman treatment or conduct towards her husband, Harold T. Hamm, complainant, as renders cohabitation unsafe and improper.

It will be observed at once that we do not have here a case where the sole object of the bill is to set aside the decree of the court of another state. Nor is equitable relief from the judgment of another court the primary object. Upon the contrary, for present purposes, we may assume that, as insisted, the pleadings before us present a collateral attack on the decree of a sister state made as a necessary incident to the primary relief sought, namely an absolute divorce.

Among other contentions made by the Proctor is one that the chancery court of Shelby County "acquired no jurisdiction to inquire into the validity of the Arkansas decree for the reason that no facts were pleaded respecting this issue". There seem to be two answers to this contention. One is that the adjudication was proper and necessary in determining the question of whether the complainant and the defendant were husband and wife. This is an issue in every divorce case. The other is that the issue was raised by the answer filed by the Proctor. The applicable rule is that in determining whether an issue embraced within a decree is within the scope of the pleadings, not only the bill but the answer must be looked to. Gibson's Suits in Chancery, Secs.140, 555 and 556.

It is next contended that since the decree setting aside the decree of the Arkansas court is a judgment in personam, the court was without power to render it because the defendant was not served with process. It is insisted that "the defendant neither being served with process nor entering an appearance cannot be bound by a decree of the court setting aside the Arkansas decree under which she had valuable personal rights". "A suit for a divorce", it is contended, "is a proceeding sui generis, founded on the violation of the duties which the law enjoins and almost sounds in tort, and is for the redress of private wrong. It is strictly a personal action".

In support of these views, we are referred to Swan v. Harrison, 42 Tenn. 534, 545; Lingner v. Lingner, 165 Tenn. 525, 56 S.W. 2d 749; Brown v. Brown, 167 Tenn. 567, 72 S.W.2d 557. We do not think these cases require the holding that, other questions aside, service of process on the defendant was essential to give the court jurisdiction to determine the validity or invalidity of the decree of the Arkansas court. The primary object of the suit is to obtain a divorce. One issue is whether the marital relation subsists between the parties. In the present case this turns upon whether the the decree of the Arkansas court was void. The chancellor was authorized to determine that as a necessary incident to granting the primary relief. If it were otherwise, no divorce could be granted except upon personal service for, as said, the issue of whether the parties were husband and wife is present in every divorce action.

Contrary to the Proctor's contention, the view entertained by the weight of authority is that the marital status or relation is itself a res in the sense that a proceeding affecting it alone is a proceeding in rem or quasi in rem where substituted service by publication is sufficient to answer the requirement of due process. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Geary v. Geary, 272 N.Y. 390, 6 N.E.2d 67, 108 A.L.R. 1293; Saul v. Saul, 74 App.D.C. 287, 122 F.2d 64. This is the view of the courts in this jurisdiction. Brown v. Brown, 155 Tenn. 530, 547; 296 S.W. 356; Toncray v. Toncray, 123 Tenn. 476, 485, 131 S.W. 977, 34 L.R.A., N.S., 1106, Ann.Cas.1912C, 284. There are also observations of our Supreme Court in Rose v. Rose, 176 Tenn. 680, 145 S.W. 2d 773, which, while not the basis of the decision, are pertinent. We have in mind the reference to the cases of State v. District Court et al., 66 Mont. 496, 214 P. 85, 33 A.L.R. 464, and Everett v. Everett, 22 App.Div. 473, 47 N.Y.S. 994.

See also 3 Freeman on Judgments, Secs., 1429, 1436, 1437. The recent case of Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, expressly overruled Haddock v. Haddock, 201 U. S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, and held that a divorce decree, otherwise valid, obtained in one state against a nonresident defendant without appearance and upon constructive service of process only, was entitled to extra-territorial recognition under the full faith and credit clause of the Federal Constitution. Art. 4, § 1.

The decision abolished the legal fiction erected by the Haddock case, under which the domicile of the wife was identified with that of her husband where the separation was due to her fault, and held...