Henry v. Henry

• Citation: 106 N.W.2d 570,362 Mich. 85
• Decision Date: 02 December 1960
• Docket Number: No. 46,46
• Parties: Serena Alles HENRY, Plaintiff and Appellee, v. Thomas Patrick HENRY, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 570

106 N.W.2d 570

362 Mich. 85

Serena Alles HENRY, Plaintiff and Appellee, v. Thomas Patrick HENRY, Defendant and Appellant.

No. 46.

Supreme Court of Michigan.

Dec. 2, 1960.

Piggins, Rehn, Balmer, Grigsby & Skillman, Detroit, for plaintiff and appellee.

James E. Haggerty, Detroit, George E. Brand, Detroit, of counsel, for defendant and appellant.

Before the Entire Bench.

EDWARDS, Justice.

Michigan law provides no quick and easy divorce. Nor, when a married couple is domiciled in Michigan, may one party go to another State solely in order to procure a divorce with the expectation that it will subsequently be recognized in Michigan. Gray v. Gray, 320 Mich. 49, 30 N.W.2d 426. This appeal illustrates the tragic results of ignoring this long-established rule.

Mr. Henry, a lifetime Michigan resident, desiring a divorce from his wife of 24 years, went to Nevada in 1954 and procured one in 1955. No personal service was had on Mrs. Henry in Nevada, nor did she appear. Mr. Henry then remarried and returned to Michigan in 1956. In 1957 Mrs. Henry brought a bill of complaint for declaratory judgment in Wayne circuit court to declare Mr. Henry's Nevada divorce void.

The circuit judge who heard the extensive testimony found that Mr. Henry had not acquired domicile in Nevada, that the Nevada court never acquired jurisdiction of Mrs. Henry, and that the Nevada divorce was void.

The husband's appeal attacks the declaratory judgment action as inappropriate, and argues that the testimony taken at hearing was not sufficient to overcome the finding of jurisdiction made by the Nevada court or the presumption of validity to which the Nevada decree was entitled under the full faith and credit clause of the United States Constitution.

The declaratory judgment issue had been the subject of defendant's motion to dismiss plaintiff's bill of complaint. This motion was heard and denied before the cause was assigned for hearing on the merits. No appeal was taken and at hearing the circuit judge treated this issue as res adjudicata. Only the most cursory effort was made at trial to preserve the issue for appellate review.

In addition to agreeing that the issue was res adjudicata by time of hearing, we also agree with the denial of the motion. Under the circumstances related herein, there is obviously a real and important issue between the parties in a case 'of actual controversy,' to employ the words of the statute. C.L.1948, § 691.501 (Stat.Ann. § 27.501).* Appellant's argument is that what the wife seeks is merely an affirmation of her status as a wife--and that such status is to be distinguished from the assertion of any legal rights. We are unable to agree with this distinction. We can think of few rights of greater consequence to a woman than those which are placed in jeopardy by her ignorance as to whether she is or is not married. Her rights to companionship, protection, home and sustenance from her husband are all at issue in this suit. And the fact that compelling the furnishing of the first two of these is beyond the reach of judicial decree does not serve to avoid the fact that the last two obviously are rights which may be upheld by legal processes.

While the issue pertaining to marital status presented herein has never heretofore been passed upon in Michigan, this Court has said:

'But the rights to be determined by declaratory judgment or decree may be and perhaps usually are rights not in praesenti, but rights which are to come into full fruition or which will be fully vested at some future time. If uncertainties and controversies arise between interested parties as to what their respective rights will be when such rights accrue or become vested, and to avoid needless hazards or possible losses, it is necessary to presently have decision of such uncertain or controverted rights, then there is actual need of and justification for declaratory adjudication. Otherwise there is no actual present controversy in the true sense, and no need of nor justification for litigation of this character. If the parties will not be subjected to loss nor their rights impaired by instituting proceedings after the alleged rights accrue rather than resorting to declaratory proceedings prior to the actual accrual of such rights, there is no justification for asking a declaratory judgment or decree. At least one of the tests of right to resort to a declaratory proceedings is the 'necessity for present declaratory judgment as a guide to plaintiff's future conduct in order to preserve its legal rights.' Wolverine Mutual Motor Ins. Co. v. Clark, 277 Mich. 633, , 270 N.W. 167, 169.' City of Flint v. Consumers Power Co., 290 Mich. 305, 309, 287 N.W. 475, 476. See, also, Bane v. Township of Pontiac, 343 Mich. 481, 72 N.W.2d 134.

We can conceive of few situations where the need for a declaration of rights is more related to guidance of the future conduct of these parties than that posed by this case.

Furthermore, declarations of rights concerning an out-of-State divorce are not novel in the nation. There is ample precedent which holds that an action to declare void a divorce procured without domicile is an appropriate remedy under statutes similar to that of Michigan. Hogan v. Hogan, 320 Mass. 658, 70 N.E.2d 821; Baumann v. Baumann, 222 App.Div. 460, 226 N.Y.S. 576. Id. (on trial) 132 Misc. 217, 228 N.Y.S. 539, 224 App.Div. 719, 229 N.Y.S. 833, affirmed 250 N.Y. 382, 165 N.E. 819; Melnick v. Melnick, 147 Pa.Super. 564, 25 A.2d 111.

Borchard says on the specific issue:

'The more typical situation is that in which 1 of the parties to an earlier marriage wishes to assert its continued validity and the invalidity of a second marital relation. As a rule, 1 spouse has left the matrimonial domicil, secured a divorce in another State without service of process on the deserted spouse, and then possibly contracted a second marriage. Not caring to undertake an action for divorce or annulment of the second marriage or if the wife, a suit for support and maintenance, the deserted spouse can obtain effective relief from the uncertainty of his or her status by an action for a declaration that plaintiff is still the wife (or husband) of the defendant and that the purported divorce and hence the remarriage are void.' Borchard, Declaratory Judgments (2d ed.), 479.

Appellant's primary reliance, in this appeal, however, is upon his assertion (variously phrased) that the factual record developed in this case did not warrant a declaration that this Nevada divorce was void.

The circuit judge, after hearing extensive testimony, entered these findings in his opinion:

'The facts of the case * * * show that in the spring of 1954 the defendant asked the plaintiff for a divorce; that there were conversations in regard to this matter throughout the summer and that the plaintiff refused to institute suit for divorce against the defendant in Michigan. In September, 1954, the defendant moved out of the house in Grosse Pointe to the Parkstone hotel and stayed there until approximately December of 1954. During the year 1954 the testimony shows that the defendant consulted with Mr. Harrison T. Watson, an attorney, and learned from him the divorce laws of many other States, and conferred with Mr. Ailes, the brother, who is a reputable attorney, as is Mr. Watson, of the Detroit Bar. Mr. Ailes is the brother of the plaintiff. There is a dispute as to the exact conversation between the defendant and Mr. Ailes, Mr. Ailes testifying that the defendant said he would go to Nevada to get a divorce, the defendant denying it.

'In December of 1954 the defendant went first to Texas and then to Las Vegas, Nevada. He left Detroit without notice to his wife and carried with him personal effects. The testimony I believe was as much as he could get into his car. After being in Las Vegas for approximately 8 1/2 to 9 weeks, he in February, 1955, instituted a divorce action against the plaintiff. The testimony shows that prior to the institution of this divorce action, he had been consulting with an attorney in Las Vegas for approximately a 6 weeks' period. One month after the divorce action was started the court in Nevada granted him a divorce on March 22nd, or March 23rd, 1955.

'The facts further show that with reference to the business of the Thomas P. Henry Company there was no change at any time in the management of the company, or in its operation. There were repeated trips after the granting of the divorce on March 22nd, 1955, to Detroit, and the facts further show that the plaintiff retained membership in Detroit clubs, in which both he and his family participated, kept tight control of the Thomas P. Henry Company, and maintained his principal bank account at the National Bank of Detroit, although he had opened an account in the National Bank of Nevada. After the granting of the divorce in Nevada on March 22nd, 1955, the defendant was absent from Las Vegas a great deal of the time. From April, 1955, until he finally left in May, 1956, the facts show that he was out of the city of Las Vegas approximately 200 days. At no time after the divorce was granted did he stay in Las Vegas more than 30 days at 1 time.

'In December, 1955, the defendant remarried and returned sporadically to Las Vegas, but finally on May 5th, left Las Vegas for good.

* * *

* * *

'There is no question in the instant case but what formal steps were taken to acquire domicile; voting registration, bank account, renting of an apartment, purchasing of a lot, sporadic physical presence, and payment of an income tax. But other and stronger factors in the opinion of this court show that the basic purpose of the defendant in going to Nevada was first and primarily to obtain a divorce. This is emphasized, I think, and borne out by the repeated requests of the defendant for the divorce, by his conferences with Mr. Harrison T. Watson and Mr. Edgar Ailes, and the court finds here as a matter of fact that he...