Hickman v. Hickman, 68

• Decision Date: 21 March 1956
• Docket Number: No. 68,68
• Citation: 49 Del. 568,121 A.2d 689,10 Terry 568
• Parties: , 49 Del. 568 Elsle F. HICKMAN v. Edward S. HICKMAN. Civil Action, 1955.
• Court: Delaware Superior Court

Page 689

121 A.2d 689

10 Terry 568, 49 Del. 568

Elsle F. HICKMAN v. Edward S. HICKMAN.

No. 68 Civil Action, 1955.

Superior Court of Delaware, Sussex County.

March 21, 1956.

Daniel J. Layton, Sr., Georgetown, for plaintiff.

Samuel Russell, of Tunnell & Tunnell, Georgetown, for defendant.

TERRY, Judge.

Elsie F. Hickman has instituted this action against Edward S. Hickman for divorce on the ground of willful desertion.

The plaintiff's petition recites as follows

'1. That she is now and for more than two years next preceding the commencement of this action has been a resident of Ocean View, Sussex County, Delaware.

'2. That the defendant, Edward S. Hickman, for more than two years next preceding the commencement of this action has been a resident of the State of Delaware, his post office address being Clarksville, Sussex County, Delaware.

'3. That the plaintiff and defendant were married in due form of law at Ocean View, Delaware, on or about the twenty-eighth day of February, 1907.

'4. That in the months of February, in the year 1947, the defendant, without cause, willfully deserted the plaintiff, and has persisted and continued in said wilful desertion since the month of February, 1947.

'5. That in the month of August, 1944, the plaintiff was informed that the defendant had or would institute a suit for divorce against the plaintiff in Reno, Nevada, and was requested by the defendant's attorney in Reno aforesaid to sign a power-of-attorney which she refused to do; and thereafter, the plaintiff received from the Second Judicial District of the State of Nevada, in and for the County of Washoe, a certified copy of the judgment and decree in the case of Edward S. Hickman, the defendant herein, and Elsie F. Hickman from which it appeared that a decree of divorce was entered on the 8th day of November, A.D. 1944.

'The plaintiff alleges that she never was served personally with any legal process issued from the Court in Nevada, that she never authorized any appearance to be made for her, and that in fact no appearance was ever entered for her in said action.

'The plaintiff alleges also that the said Edward S. Hickman, the defendant herein, was never a bona fide resident of the State of Nevada, that immediately upon the aforesaid decree of divorce being entered in his favor he returned to the State of Delaware and has since resided in the State of Delaware, or elsewhere.

'WHEREFORE, the plaintiff alleges that the decree of divorce entered in the State of Nevada aforesaid was, and is invalid and is of no legal force or effect.

'WHEREFORE, the plaintiff prays that a summons issue directing the defendant to appear in this Court according to its rules to answer this complaint;

'That a decree be entered divorcing the plaintiff and defendant from the bonds of matrimony.

'That the plaintiff be allowed out of the defendant's real and personal estate such share as the Court think's reasonable.'

The defendant has answered as follows:

'FIRST DEFENSE'

'1. Paragraph 1 of Plaintiff's Petition is Admitted.

'2. Paragraph 2 of Plaintiff's Petition is Admitted.

'3. Paragraph 3 of Plaintiff's Petition is Admitted.

'4. Paragraph 4 of Plaintiff's Petition is Denied.

'5. As to paragraph 5 of Plaintiff's Petition, Defendant admits that on the 8th day of November, A.D. 1944, he obtained a Divorce from Plaintiff in the Second Judicial District of the State of Nevada, in and for the County of Washoe, but denies that Plaintiff was never served personally with any legal process issued from the Court in Nevada, denies that immediately upon the aforesaid Decree of Divorce being entered in his favor Defendant returned to the State of Delaware, denies that Defendant was never a bona fide resident of the State of Nevada, and further denies that the Decree of Divorce entered in the State of Nevada aforesaid was, and is invalid and of no legal force or effect.'

'SECOND DEFENSE'

'As and for an additional affirmative defense, Defendant answers:

'(a) That after the aforesaid marriage of plaintiff and defendant, plaintiff herein was guilty of numerous indiscretions and acts of misconduct involving other men and alcoholic liquor in defiance of defendant's pleas and demands to such an extent that defendant on or about September, 1937, found it unbearable to continue marital relations with plaintiff, and as a result was forced to leave plaintiff.

'(b) That said acts were sufficient to constitute the plaintiff herein a constructive deserter.

'(c) That plaintiff and defendant have not lived together as man and wife since September, 1937, as a result of Plaintiff's constructive desertion.'

'THIRD DEFENSE'

'On October 13, 1945, the instant defendant, Edward S. Hickman, brought an action for forceable detainer against the instant plaintiff, Elsie F. Hickman, before Leroy H. Ryan, Sr., Justice of the Peace in Frankford, Delaware. At the trial of said action, the issue was raised of the validity of the decree of divorce granted to the instant defendant, Edward S. Hickman on the 8th day of August, 1944, by the Second Judicial District Court of the State of Nevada in and for the County of Washoe, against the instant plaintiff.

'Said issue was argued before the Justice of the Peace by the attorneys for the respective parties in the forceable detainer action. After the argument of counsel, the Justice of the Peace determined that the Nevada Decree was valid, and said determination was necessary to the Justice of the Peace's final adjudication of the cause in favor of the plaintiff. The issue of the validity or non-validity of the Nevada divorce is the same issue as is raised by the pleadings in the instant case. The defendant therefore avers that the final adjudication of the Justice of the Peace in the forceable detainer action between the same parties as the parties in the instant case is res judicata, that the issue of the validity or non-validity of the Nevada divorce decree may not be re-litigated between the same parties, and that the decision of the Justice of the Peace in favor of the validity of the divorce is a complete bar to the instant action.

'WHEREFORE, Defendant prays that Plaintiff's Petition be dismissed, and that defendant be granted such other relief as the Court deems just and proper.'

A review of the pleadings, depositions, interrogatories and exhibits heretofore filed disclose for the purposes herein that the parties, subsequent to their marriage in 1907, lived together in Sussex County, Delaware, until a separation occurred in the fall of 1938; that from 1937 until 1944 the defendant was employed by a dredging firm and his employment took him down and along the New England coast, working at different intervals at Boston, Portland, Maine, New London, New Haven, Bridgeport and Providence; that the defendant went to Reno, Nevada in 1944 for the purpose of obtaining a divorce, and was granted a final decree of divorce by the District Court of Nevada in and for Washoe County on the 2nd day of October, 1944, on the statutory ground of 'three years separation' from the plaintiff.

Upon obtaining his final decree in divorce the present defendant returned to Delaware and shortly thereafter instituted before a Justice of the Peace in and for Sussex County an action of forceable detainer against the present plaintiff.

Upon the trial of the issue on September 28, 1945, the Justice of the Peace of necessity had to pass upon an objection to his jurisdiction as interposed by the present plaintiff, predicated upon a contention that the Nevada decree was invalid and should not be given full faith and credit by the Justice of the Peace. This is so for the reason that a husband could not maintain a foreceable detainer action against his wife in this State.

The Court upon a consideration of arguments made by respective counsel determined that the Nevada decree was valid and gave to it full force and credit. Thereupon the Court proceeded to hear evidence concerning the forceable detainer action, and subsequently rendered judgment in favor of the plaintiff, the present defendant.

The defendant in the present action has moved for an order granting summary judgment in his favor based upon his third defense on the ground that there is no genuine issue as to any material issue of fact, and that the defendant is entitled to judgment as a matter of law. The motion is predicated upon the adjudication by the Justice of the Peace of the Nevada divorce decree in the forecable detainer action which the defendant contends in the instant case is res judicata, thus precluding this Court from re-litigating the validity or non-validity of that decree.

The plaintiff has moved to strike the third...