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 |
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.
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:
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:
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:
period. One month after the divorce action was started the court in Nevada granted him a divorce on March 22nd, or March 23rd, 1955.
'In December, 1955, the defendant remarried and returned sporadically to Las Vegas, but finally on May 5th, left Las Vegas for good.
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