Hartigan v. Hartigan

• Decision Date: 30 March 1961
• Docket Number: 6 Div. 643
• Citation: 272 Ala. 67,128 So.2d 725
• Parties: John HARTIGAN v. Helen Anderson HARTIGAN.
• Court: Alabama Supreme Court

Page 725

128 So.2d 725

272 Ala. 67

John HARTIGAN v. Helen Anderson HARTIGAN.

6 Div. 643.

Supreme Court of Alabama.

March 30, 1961.

Huey & Tyrrell and J. Terry Huffstutler, Birmingham, and Jack Crenshaw, Montgomery, for appellant.

No attorney marked for appellee.

Paul Johnston, Birmingham, for Geo. Lewis Bailes, amicus curiae.

MERRILL, Justice.

Appellant seeks a review of an order vacating an original divorce decree rendered in 1954, which was made by the trial court in 1960 in a proceeding to modify alimony payments included in the original decree. Appellant was uncertain as to whether mandamus was the proper mode of securing a review, and has presented this case here on petition for mandamus or in the alternative by appeal.

On July 28, 1954, Helen Hartigan filed a bill for divorce in the circuit court charging her husband, John Hartigan, with voluntary abandonment. She alleged in the complaint that she was a bona fide resident citizen of Birmingham, Jefferson County, Alabama, and had been for more than one year next preceding the filing of the bill, and that the respondent was a resident of Jefferson County, Alabama.

The respondent, appellant in this proceeding, filed an answer and waiver in which he admitted the jurisdictional facts but denied the other material allegations of complainant, and agreed that the case 'may be carried forward to its final determination and decree of divorce issued without other notice to respondent.' He signed the answer and waiver in the presence of a witness.

An agreement between complainant and respondent, purported to have been signed by both parties on July 28, 1954, was filed with the complaint and answer, under the terms of which, respondent agreed to pay the complainant alimony of $60 per week and retain her as beneficiary of a $5,000 life insurance policy on his life, both conditioned on her remarriage. The complainant prayed that the agreement be incorporated in the divorce decree.

In her deposition, the complainant swore that she was a bona fide resident of Birmingham and had been for more than a year; that she lived at 247 Kent Drive in Birmingham and that respondent was a resident citizen of this county and state. Her deposition was supported by a deposition of one Hazel Daniels, who swore that she knew both parties, that they were resident citizens of Birmingham, Jefferson County, Alabama; that complainant resided at 247 Kent Drive and that respondent was in the western part of the city, the exact address being unknown. A decree of divorce incorporating the property settlement was entered on July 28, 1954.

On June 17, 1960, Hartigan filed a petition in the Circuit Court of Jefferson County praying for a modification of the 1954 divorce decree so as to eliminate the requirement that he pay Mrs. Hartigan alimony of $60 per week. He averred certain financial grounds as changed circumstances.

On July 7 and 8, 1960, Mrs. Hartigan filed an answer asking enforcement of the decree, a petition to modify the decree to require Hartigan to pay the income taxes on the alimony which she had received from him, a petition for citation of contempt on the ground that he was delinquent on his alimony payments, and a petition for allowance of her solicitor's fees.

The cause was heard before Judge Bailes on July 14, 1960. Both parties were represented by local counsel and, in addition, Mrs. Hartigan was represented by a New York attorney. We quote from Judge Bailes' answer to the petition for mandamus:

'* * * Considerable discussion between the parties took place 'off the record' during the forenoon of July 14th. During the course of this informal conference it became evident to Circuit Judge that neither of the Hartigans had ever been a bona fide resident citizen of Alabama, either before, at the time of, or subsequent to the rendition of the 1954 decree of divorce. At this stage of the off-the-record discussions Mrs. Hartigan's local counsel withdrew from the case and her interests in the matter were thereafter represented by Mr. Gluckman.'

Hartigan's attorney sought leave of court to withdraw from the case and the permission was granted but the counsel remained in the courtroom during the proceedings. (We note that this attorney was designated to receive whatever decree the court might render, signed the motion for a new trial, signed the security for costs on appeal to this court, and is one of the attorneys on brief.) Both counsel and Hartigan asked for a continuance of the hearing but the requests were overruled.

The following facts were then established without objection:

Mrs. Hartigan came to Birmingham by plane from New York on July 28, 1954. She had been driven to the New York airport by Hartigan, who had provided plane tickets for her trip to Birmingham and return. When she arrived in Birmingham, she went to the office of a Birmingham attorney, now deceased, who had been chosen by Hartigan and he was Hartigan's attorney. She signed the complaint, the property settlement agreement and her deposition. After a period of some four or five hours, she returned to New York by plane. She received a copy of the divorce decree some days later.

Mrs. Hartigan testified that she had never resided in Alabama and had never been in Alabama before July 28, 1954; that she never resided at 247 Kent Drive, that Hartigan had never lived in Alabama or in the western part of Birmingham; that her trip to Alabama had been agreed upon between her and her husband in New York; that she came to Alabama to get the divorce, and that she had been represented by counsel in New York City, who had approved the plans for the Alabama divorce.

On the following day, July 15, 1960, Judge Bailes on his own motion entered a decree setting aside the 1954 final decree of divorce on the ground that it was procured by fraud on the court, was illegal, null and void, and dismissed the petitions of both parties. A motion for a new trial was filed on behalf of Hartigan which was overruled.

This case is the first of its kind in this jurisdiction. It possibly could be sui generis. We have consistently held bills of review or bills of that nature good when it was shown that a fraud had been prepetrated on the court and a party. Hooke v. Hooke, 247 Ala. 450, 25 So.2d 33; Montgomery v. Montgomery, 261 Ala. 416, 74 So.2d 254; Tarlton v. Tarlton, 262 Ala. 67, 77 So.2d 347; Sapos v. Plame, Ala., 128 So.2d 524. In each of those cases, one party to the marriage was alleged to have been the victim of fraud.

But here, both parties to the divorce action are guilty of fraud. They concocted the fraudulent scheme and perpetrated it on the court together. Then after over five years, they both appear voluntarily, seeking modification or enforcement of the decree which the court had no authority to render in 1954.

Suits for divorce are not ordinary contract cases. Such suits are of a tripartite character, wherein the public occupies in effect the position of a third party, and the court is bound to act for the public in such cases, though the rights of the parties themselves must be fully respected. Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510; Ratcliff v. Ratcliff, 209 Ala. 377, 96 So. 422. This doctrine is generally recognized in this country. 27A C.J.S. Divorce § 8, p. 30; 17 Am.Jur., Divorce and Separation, § 13, p. 264.

In this state, a provision in a divorce decree for periodic payments of alimony is not final in the sense that it cannot be changed, and the court has continuing authority or jurisdiction to modify such a provision upon proof of a substantial change in conditions. A petition seeking to modify is regarded as a supplemental proceeding. Murrah v. Bailes, 255 Ala. 178, 50 So.2d 735.

The specific question here presented is whether the Circuit Court of Jefferson County, in Equity, has the power to vacate, of its own motion, the divorce decree rendered by the court in 1954, not void on its face, when in 1960, it is shown in an adversary proceeding between the same parties to modify the decree, and both parties are physically before the court, that the 1954 decree was void because the court did not have jurisdiction of the subject matter.

It seems appropriate to state the law of this state as it pertains to nonresidents. Tit. 34, § 27, Code 1940, as amended, reads:

'No bill can be filed for a divorce on the ground of voluntary abandonment, unless the party applying therefor, whether husband or wife, has been a bona fide resident citizen of this state for twelve months next preceding the filing of the bill which must be alleged in the bill and proved; provided however, the provisions of this section shall not be of force and effect when the court has jurisdiction of both parties to the cause of action.'

The proviso was added in 1945 and has been construed by this court. In Jennings v. Jennings, 251 Ala. 73, 36 So.2d 236, 3 A.L.R.2d 662, decided in 1948, the full court held that jurisdiction, the judicial power to grant a divorce, is founded on domicile under our system of law. This is so because domicile in the state gives the court jurisdiction of the marital status or the res or subject matter which the court must have before it in order to act. Jurisdiction of the res is essential because the object of a divorce action is to sever the bonds of matrimony, and unless the marital status is before the court, the court cannot act on that status. Thus, where both parties to a divorce action do not reside within this state, the marriage relation is without the state and jurisdiction cannot be acquired by courts of this state even by consent of the parties. And we held in the Jennings case that the court correctly dismissed the bill of complaint. It had a right to do this of its own motion because of lack of jurisdiction.

In Gee v. Gee, 252 Ala. 103, 39 So.2d 406, 408, it was said in discussing the Jennings case: 'Therefore, we held that the proviso did not authorize the court in this State to...