Hartenstein v. Hartenstein

• Decision Date: 08 January 1963
• Citation: 18 Wis.2d 505,118 N.W.2d 881
• Parties: Greta HARTENSTEIN, Plaintiff-Respondent, v. Richard HARTENSTEIN et al., Defendants-Appellants, City Bank and Trust Co. et al., Defendants-Respondents. (Two notices of appeal.)
• Court: Wisconsin Supreme Court

Page 881

118 N.W.2d 881

18 Wis.2d 505

Greta HARTENSTEIN, Plaintiff-Respondent, v. Richard HARTENSTEIN et al., Defendants-Appellants,

City Bank and Trust Co. et al., Defendants-Respondents. (Two

notices of appeal.)

Supreme Court of Wisconsin.

Jan. 8, 1963.

A. L. Skolnik, Milwaukee, for Eva Hartenstein. Herman J. Posner, Milwaukee, for Richard Hartenstein.

Aaron L. Weiss and Ruppa & Wegner, Milwaukee, for plaintiff-respondent.

CURRIE, Justice.

These two appeals present the issue of whether Wisconsin courts are required under sec. 1, art. IV, U.S.Const. ¹ to give full faith and credit to the Nevada decree of divorce entered in the action in that state in which Greta was the plaintiff and Richard the defendant.

Greta's counsel advance two contentions why this Nevada decree should not be accorded full faith and credit in this action: (1) both parties were domiciled in Wisconsin at the time the Nevada divorce action was commenced and thus the Nevada court lacked jurisdiction to grant a divorce; and (2) the Nevada decree was procured as a result of Richard's fraud and coercion as alleged in Greta's complaint in the instant action. Each of these bases of attack requires our separate consideration.

Domicile.

Where a divorce decree is obtained solely on constructive service, without any appearance by the defendant spouse, and neither spouse is domiciled in the state granting the divorce at the time the suit is instituted, the decree is not entitled to full faith and credit. Williams v. North Carolina (1945), 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, rehearing denied 325 U.S. 895, 65 S.Ct. 1560, 89 L.Ed. 2006; Rice v. Rice (1949), 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957; Anno. 28 A.L.R.2d 1303, 1308; and Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees, 65 Harvard Law Review (1951), 193, 216. Conversely where the absent spouse personally appears ² in the divorce proceeding, the decree is entitled to full faith and credit. Sherrer v. Sherrer (1948), 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429; Coe v. Coe (1948), 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451; Johnson v. Muelberger (1951), 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. This is also true where personal service has been had upon the opposite spouse. Cf. Johnson v. Muelberger, supra, 340 U.S. at p. 587, 71 S.Ct. 474; Estin v. Estin (1948), 334 U.S. 541, 544, 68 S.Ct. 1213, 92 L.Ed. 1561; 1 A.L.R.2d 1412; Cook v. Cook (1951), 342 U.S. 126, 127, 72 S.Ct. 157, 96 L.Ed. 146; and Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees, 65 Harvard Law Review (1951), 193, 216.

The rationale of the United States supreme court cases which hold that full faith and credit must be given to a foreign state's decree where defendant spouse has appeared or been personally served is stated in Sherrer v. Sherrer, supra, 334 U.S. at pp. 351-352, 68 S.Ct. at p. 1091:

'Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree.'

This statement is also quoted by the court in Johnson v. Muelberger, supra, 340 U.S. at p. 586, 71 S.Ct. at p. 477.

Tentative Draft No. 1 (1953), Restatement, Conflicts (2d), sec. 111a, provides:

'If a spouse was personally subject to the judicial jurisdiction of the divorce state, the question whether he, and those in privity with him, can thereafter attack the decree collaterally depends upon the principles of res judicata in force in that particular state.'

In the same Tentative Draft, Comment c to sec. 111 states:

'As stated in sec. 111a, recent Supreme Court cases hold that, where both spouses were personally subject to the jurisdiction of the divorce court, they cannot thereafter successfully attack the decree collaterally in another State, so long as such an attack would not be permitted in the State of rendition. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1948). These decisions are based on the principle of res judicata.'

See also Restatement, Judgments, p. 575, sec. 118, comment e

With regard to the instant divorce decree, the Nevada court had jurisdiction over both Greta, because she invoked that jurisdiction, and Richard, because he appeared generally by counsel in the action. Because this judgment would be res judicata on the issue of domicile in Nevada, it is also res judicata on this issue in the instant action.

While the fact of Richard's appearance in the Nevada proceeding was before the trial court in the instant action on the motion for summary judgment, because an authenticated copy of the Nevada divorce decree was attached to the notice of motion, this fact was not before the court when it overruled Richard's demurrer to the complaint. Nevertheless, the United States supreme court has directly ruled in Cook v. Cook, supra, that a court which has rendered a divorce decree will be presumed to have had jurisdiction over both parties, absent a showing to the contrary, so as to render the decree res judicata on the issue of domicile. In the Cook Case, the Vermont supreme court had refused to give full faith and credit to a Florida decree of divorce on the ground, among others, that plaintiff wife was not domiciled in Florida. The record before the United States supreme court on certiorari failed to disclose whether or not defendant spouse had appeared in the Florida action; nevertheless, the court presumed that the Florida court had jurisdiction over both parties and reversed the Vermont court.

In view of the foregoing authorities, we are constrained to hold that the Nevada divorce decree is not subject to collateral attack in the instant action on the ground that Greta's domicile at the time she commenced the Nevada action was actually in Wisconsin.

Counsel for Greta contend that we are precluded from reaching this result by subs. (1) and (2) of sec. 247.22, Wis.Stat.1959. ³ This section was promulgated in 1948 by the National Conference of Commissioners on Uniform Laws as the Uniform Divorce Recognition Act and was adopted by the Wisconsin legislature in 1949. The Commissioners' Note to this Act makes it clear that the draftsmen were not attempting to nullify the holdings of the United States supreme court in the Sherrer and Coe Cases, supra. To the contrary, this note summarizes the holdings of those two cases as follows (at 9A Uniform Laws Ann., 278, 278-279):

'* * * they hold that, by virtue of the full faith and credit clause, a defendant who obtains a divorce upon his own cross petition filed in the original suit, or who answers, denying the plaintiff's domicil in the state of the forum and takes some part in the trial, is bound by the finding incorporated in the decree, entered in the original suit, that the plaintiff is domiciled in the state of the forum. Accordingly, the state of original domicil may not permit such a defendant to attack this determination of the court granting the divorce in a proceeding to which he is a party in its courts. Obviously, the same reasoning would apply to the plaintiff in the original action.' (Emphasis supplied.)

This note shows that the Uniform Divorce Recognition Act was intended to reserve to the states enacting it the fullest possible control over their domiciliaries consistent with the Sherrer and Coe Cases. Because the Nevada divorce decree in this case is res judicata with respect to the domicile of Greta at the time she commenced the divorce action there, and because this decree is now challenged by one who was a party to the Nevada action, Wisconsin courts are now precluded from making an independent factual determination that she was then domiciled in Wisconsin. Therefore, the provision of sub. (1) of sec. 247.22 Stats., has no application to this case. Sub. (2) of sec. 247.22 is merely an evidentiary statute which, by creating a rebuttable presumption, comes into play when the issue of domicile is open for determination under sub. (1).

Fraud and Coercion.

Counsel for Greta further argue that the Nevada divorce decree is not entitled to full faith and credit because she procured it as a result of Richard's fraud and coercion as pleaded in her complaint.

Under the provisions of the Act of May 26, 1790, 1 Stat. 122, as amended R.S. sec. 905, 28 U.S.C. § 687, quoted in footnote 1, supra, Wisconsin courts must accord the Nevada divorce decree such faith and credit as it has 'by law or usage in the courts' of Nevada. As set forth in Tentative Draft No. 1 (1953), Restatement, Conflicts (2d), sec. 111a, supra, the issue of whether a person such as Greta can collaterally attack a divorce decree depends upon the principles of res judicata in force in the state granting the divorce. Therefore, we must consider the question of whether the divorce decree would be subject to collateral attack by Greta in Nevada because of the alleged fraud and coercion of Richard. If the decree would not be subject to such an attack in Nevada, then it cannot be attacked in this action in Wisconsin.

We deem Calvert v. Calvert (1942), 61 Nev. 168, 122 P.2d 426, controlling on the question of whether Nevada courts would permit Greta to collaterally attack the divorce decree because of Richard's fraud and coercion as alleged in the complaint in the instant action in Wisconsin. ⁴ In the Calvert Case, plaintiff procured a divorce decree and then sought to set it aside on the ground that she commenced and maintained the divorce action because of the fraud, coercion, and duress of defendant husband. The trial court sustained a general demur...