Herron v. Passailaigue
| Decision Date | 27 October 1926 |
| Citation | 92 Fla. 818,110 So. 539 |
| Parties | HERRON et al. v. PASSAILAIGUE. |
| Court | Florida Supreme Court |
Rehearing Denied Dec. 6, 1926.
Suit by Emil E. Passailaigue against Walter I. Herron and another for an interest in property. From an order overruling defendants' demurrer to complainant's amended bill defendants appeal.
Reversed with directions.
Syllabus by the Court
If record of foreign court, in divorce action, shows no personal service and no appearance by defendant, its decree is not binding on Florida court; comity may require enforcing divorce granted in another state, although record shows no personal service on defendant and no appearance by him (Const. U.S. art. 4, § 1; U.S. Comp. St. § 1519). A state court is not bound by a decree of divorce granted in another state, if the record in the foreign court shows no personal service on the defendant and no appearance by him. The court may, however, by comity, be required to give it force and effect, unless there is some good and valid reason to the contrary.
Court may not depart from rules of comity, except to protect citizens of its own state or for reasons of public policy. The rules of comity may not be departed from, unless, in certain cases, for the purpose of necessary protection of our own citizens, or of enforcing some paramount rule of public policy.
Neither full faith and credit clause nor comity prevents collateral attack on foreign judgment to determine applicability of either principle (Const. U.S. art. 4, § 1; U.S. Comp. St. § 1519.) The very basis of comity is the principle that we ought to give the decrees of other states that force and effect which we would wish them to give ours, but neither the full faith and credit clause nor the rule of comity prevent a collateral attack on a foreign judgment for the purpose of determining the applicability of either.
Full faith and credit clause does not defeat right of state to regulate marriage and divorce therein (Const. U.S. art. 4, § 1; U.S. Comp. St. § 1519). The right of every state, under the Constitution of the United States, to regulate the matter of marriage and divorce within its own borders, to defend it against encroachment, and to fix and declare the matrimonial status of its own citizens is well settled, and the full faith and credit provision of the Constitution of the United States is not to be construed so as to defeat this right.
Wife may acquire domicile separate from that of husband, for purpose of suing for divorce. There are cases in this country which hold that the domicile of the husband is also the domicile of the wife and that she could have no other, but the great weight of authority supports the rule that, when it becomes proper or necessary, a wife may acquire a separate domicile from that of her husband, for the purpose of a suit for divorce by her.
Divorce is proper subject for legislation, if either of parties at time thereof is resident or domiciled within state. The granting of divorces is a proper subject for legislation when either of the parties at the time of the divorce is a resident of or domiciled within the territorial jurisdiction of the Legislature.
Laws and judicial proceedings in one state will be enforced in another, if not immoral, contrary to public policy, or conscience. The general rule governing the comity of nations is that, in a proper case, the laws and judicial proceedings of one state will be enforced in another state, provided they do not involve anything immoral, contrary to general policy or violative of the conscience of the state called upon to give them effect.
After intervention of rights of other parties, clearest proof is necessary to overcome finding of domicile, in decree granting divorce. The finding of the fact of domicile, or residence for the purpose of domicile, by the court making the decree raises a very strong presumption that it existed. After a lapse of time, and especially after the rights of other persons have intervened on the faith of the decree, the clearest and most satisfactory proof should be required to overcome the presumption.
On assumption that chancellor passed on domicile, accrual of cause of action, residence, and service, foreign divorce will be upheld by comity. When the record of a foreign divorce proceeding does not purport to be a copy of the 'complete record of all the proceedings and papers in said cause,' and no fraud is charged, and the right to the divorce is not denied, nor is it charged that the law, policy, or morals of this state have been violated in connection with granting the divorce, and the divorce is based on a ground valid in this state, and the chancellor decreed the law and the evidence to be in favor of the one seeking the divorce, this court will assume that the chancellor passed on the question of domicile, accrual of the cause of action, residence, and the sufficiency of the service, as required in the foreign state, and will give the divorce effect by comity in this state.
Appeal from Circuit Court, Hillsborough County; F. M. Robles, judge.
D. C. McMullen and L. King Caruthers, both of Tampa, for appellants.
Macfarlane, Pettingill, Macfarlane & Fowler, of Tampa, for appellee.
The amended bill of complaint, submitted in this cause March 2, 1925, among other things, alleges that on and prior to July 24, 1918, Charles W. Ramm lived in Charleston, S. C., and was possessed of an estate valued at more than $40,000; that the said Charles W. Ramm left a last will and testament, duly probated, whereby he devised all his estate to his widow, Annie D. H. Ramm, for her natural life, with power of disposal for investment or reinvestment, and at her death to Florrie Amelia Ramm, a legally adopted daughter. Annie D. H. Ramm was named as executrix in said will, to which position she qualified and continued to act till her death on February 7, 1924.
The bill further alleges that complainant, Emil E. Passailaigue, and Florrie Amelia Ramm were married in Charleston, S. C., November 30, 1907, and that he (complainant) continued to be the lawful spouse of said Florrie Amelia Ramm until January 2, 1924, when she died intestate, leaving as her heirs at law the complainant and her son, Charles W. Ramm Herron; that, under the law of South Carolina, the right of complainant in the estate of his deceased wife would be an undivided one-third interest in fee, but that, since the assets of the estate of Charles W. Ramm had been converted into money and invested in Florida, the title thereto by descent is governed by the laws of Florida (section 3618, Rev. Gen. Stats. of Fla. 1920), under which complainant would inherit one half, and Charles W. Ramm Herron the other half.
It is also alleged in the bill that, while acting as executrix of the estate of Charles W. Ramm, the said Annie D. H. Ramm moved to Florida and invested the money derived from the assets of said estate in Tampa realty; that at her death she left a last will and testament devising all the said property to her grandson, the defendant Charles W. Ramm Herron, conditioned on his arrival at the age of 21 years, and, in case he died before reaching that age, said property should be equally divided between her nephew, George Feran, Sophia Feran, and the defendant Walter I. Herron, and that she named the said Walter I. Herron executor of her said last will, with full power to convey all the estate left by the said will in his hands.
The bill prays that it be decreed that Annie D. H. Ramm took only a life estate under the will of Charles W. Ramm, with power of disposition for the purpose of investment and reinvestment, and that at her death the remainder in her possession became the absolute property of the said Florrie Amelia Passailaigue (née Ramm); that the complainant, Emil E. Passailaigue, be entitled to an undivided one-half interest in all the property so remaining in the possession and control of said Annie D. H. Ramm by inheritance from the said Florrie Amelia Passailaigue, and that an accounting be taken by order of the court to determine what amounts were due complainant from rents and property already disposed of by Annie D. H. Ramm that she purchased with the proceeds of the estate of the said Charles W. Ramm.
The answer admits most of the material allegations of the bill, but resists the relief sought by complainant, Passailaigue, on the ground that Florrie Amelia Passailaigue obtained a decree of divorce from her husband, the said Emil E. Passailaigue, on the 19th day of February, A. D. 1916, in the First judicial district court of Caddo parish, state of Louisiana, by which said decree of divorce the bonds of matrimony between them were forever dissolved and the said Florrie Amelia Passailaigue was authorized to assume her maiden name. Following the answer, by leave of the court first had, complainant amended his amended bill of complaint by attaching thereto a certified copy of the record of the divorce proceedings in Louisiana, whereby Florrie Amelia Passailaigue was divorced from Emil E. Passailaigue, the appellee in this cause. Defendants demurred to the amended bill, as amended. The demurrer was overruled, and this appeal is from the order overruling said demurrer.
Analysis of the foregoing facts discloses that the questions raised in this case turn on the validity of the divorce granted in Louisiana.
The defendants' demurrer was overruled on the theory that the Louisiana divorce in this state was 'of no force as to complainant's property rights under the allegation of the bill of complaint.' The effect of the ruling on the demurrer was to hold that the courts of this state would not by comity, recognize the validity of a decree of divorce obtained...
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...and should be so recognized by the law of comity between states, unless there is some good and valid reason to the contrary. See Herron v. Passailaigue, supra. Comity, in sense as here used, is neither a matter of absolute obligation, nor of mere courtesy and good will. It is, as has been d......
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