Hopkins v. Hopkins

• Decision Date: 13 January 1936
• Docket Number: 31999
• Citation: 165 So. 414,174 Miss. 643
• Court: Mississippi Supreme Court
• Parties: HOPKINS v. HOPKINS

165 So. 414

174 Miss. 643

HOPKINS v. HOPKINS

No. 31999

Supreme Court of Mississippi

January 13, 1936

Division B

1 JUDGMENT.

Records and proceedings of courts of other states are entitled to full faith and credit only in so far as such courts have jurisdiction of subject-matter and parties, and facts necessary to give jurisdiction to court rendering decree and question whether decree was founded on duress and fraud may be inquired into (Const. U.S., article 4, section 1).

2 DIVORCE.

Alabama divorce proceedings held not entitled to full faith and credit, although regular in every respect on their face where divorce decree was obtained by husband's fraud and neither of parties resided in Alabama at the time (Code Ala. 1928, section 7415; Const. U.S., article 4, section 1).

3. DIVORCE.

Wife held not estopped to attack foreign divorce decree because decree was rendered at wife's instance and on her behalf, where husband procured wife to institute proceedings for divorce through intimidation and fraud.

4. DIVORCE.

Marriage contract cannot be dissolved either by agreement or by collusive proceedings in court.

5. ESTOPPEL.

Party cannot rely on estoppel when he alone is responsible for facts that constitute estoppel, since two estoppels destroy each other.

6. DIVORCE.

Whether alimony should be allowed in gross sum must be determined by facts of particular case, having due regard to best interests of parties and husband's financial ability to respond to award in gross.

HON. JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Tishomingo county HON. JAS. A. FINLEY, Chancellor.

Bill by Mrs. Patrie Hopkins against James Robert Hopkins. From a decree for complainant, defendant appeals. Affirmed.

Affirmed.

T. A. Clark, of Iuka, and Geo. T. & Chas. S. Mitchell, of Tupelo, for appellant.

It is the contention of appellant that the decree of divorce granted to appellee, upon the original bill filed by her in the law and equity court of Franklin county, Alabama, is valid and binding upon her and there is no court within this state that has any jurisdiction whatever to attack the validity of this decree and this is especially true under section 1 of article 4 of the Constitution of the United States of America which provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

Ellis' Appeal, 23 L.R.A. 287; Lynde v. Lynde, 48 L.R.A. 679; Morrill v. Morrill, 11 L.R.A. 155; Johnson v. McKinnon, 13 L.R.A. (N.S.) 874; Cowan v. Hubbard, L.R.A. 1918C, 958; Mahoney v. Insurance Co., 9 L.R.A. (N.S.) 490; Robinson v. Robinson, 51 L.R.A. (N.S.) 534; Karen v. Karen, 60 L.R.A. 294; Edgiton v. Edgiton, 16 L.R.A. 94.

The court below erred in holding that the decree of divorce granted to appellee upon an original bill filed by her in the law and equity court of Franklin county, Alabama, is void and of no effect in this state as same is in violation of the public policy of the state of Mississippi.

The court below erred in granting the decree of alimony in this case in a lump sum even if the court should hold that it was proper to grant alimony. It will be noticed that this proceeding is in effect a proceeding for separate support and maintenance, there being no divorce sought by appellee and it is certainly not proper to grant alimony in a lump sum to a wife who merely lives separate and apart from her husband.

Jas. A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellee.

Defendant's solitary position in this matter is set wholly at rest, in our opinion, by the holdings in Miller v. Miller, handed down by the Supreme Court of Mississippi and reported in 159 So. at page 112, where this court was dealing with a divorce proceeding of Mississippi citizens in a foreign state, regular on its face but founded in fraud and set up as a barrier to the wife's proceeding for alimony, just as in the present case. It is held by our court in that case that a presiding chancellor in Mississippi is not prohibited by any inhibitions of the United States Constitution from going into the questions involved in a foreign proceeding in the interest of its own public policy, but that such chancery court has authority to hear proof and determine whether such foreign proceeding had proper jurisdictional foundation, and whether or not its proceedings invaded the public policy of Mississippi.

There is nothing in the public policy of this state that requires or suggests that a divorce granted under these circumstances, on constructive service of process, should be recognized and given effect as a dissolution of the matrimonial relations of parties whose matrimonial domicile is in this state. To give recognition and effect to such a divorce would be contrary to the public policy of this state, as exemplified in its statutory enactments and the decisions of its courts.

Ratliff v. Ratliff, 96 So. 423; Carson v. Carson, 40 Miss. 349; Andrews v. Andrews, 47 L.Ed. 366; Maynard v. Hill, 125 U.S. 190, 31 L.Ed. 654, 8 S.Ct. 723; Atherton v. Atherton, 181 U.S. 155, 45 L.Ed. 794, 21 S.Ct. 544; Woodson v. Hopkins, 37 So. 1000.

For the sole purpose of showing the futility of the defendant's contention, we take the position that even if she were in pari delicto with him in the consummation of this fraudulent divorce proceeding in Alabama, that such a participation would not affect her right in this proceeding, not based on or in any way growing out of such procedure in the state of Alabama, for the reason that her position is entirely different to that of the defendant. He seeks to invoke it and rely upon it as a shelter and protection, and she neither invokes it nor relies upon it in any way, but invokes and relies upon her marital contract with this defendant which was consummated in innocence and regularity.

Gurley v. Gorman, 102 So. 65; A. Goletti, Inc., v. Andrew Gray Co., 88 So. 175.

Even if complainant were estopped, this defendant cannot claim any right of estoppel against her, because estoppel against estoppel gives neither party an advantage of the estoppel.

21 C. J. 1110, sec. 109; 10 R. C. L., Estoppel, sec. 146; Ratliff v. Ratliff, 96 So. 423; Barringer v. Dauernhein, 53 So. 923; Rundle v. Van Inwegan, 9 Civ. Proc. R. (N.Y.) 328; Comstock v. Adams, 23 Kan. 513, 33 Am. Rep. 191; Bomsta v. Johnson, 38 Minn. 230, 36 N.W. 341; Allen v. MacLellan, 12 Pa. 328, 51 Am. Dec. 608.

Equitable considerations such as would ordinarily sustain an estoppel cannot be allowed to override motives of public policy.

Ackerman v. Larner, 116 La. 101, 40 So. 581; Branson v. Wirth, 21 L.Ed. 569; 2 Sm. L. C. 702, 748, Ed. 1866; Preval Chretien v. Giron, 115 La. 24, 5 Am. & Eng. Ann. Cas. 845.

Awarding alimony in a lump sum was a matter fully in the discretion of the chancellor, and he in no way abused such discretion.

Miller v. Miller, 159 So. 112.

Argued orally by Jas. A. Cunningham, for appellee.

OPINION

Anderson, J.

Appellee filed her bill in the chancery court of Tishomingo county against appellant, her alleged husband, to recover alimony. The cause was heard on original bill, answer and proofs resulting in a decree awarding appellee alimony in a lump sum for two thousand seven hundred fifty dollars. From that decree, appellant prosecutes this appeal.

Appellant and appellee were married in Itawamba county in this state on January 18, 1925. They removed to Franklin county, Alabama, and resided there until about the 1st of September, 1933, when they removed to Tishomingo county in this state, where they resided when the bill in this case was filed. The bill was filed April 21, 1934. The appellee alleged therein that on March 2, 1934, through fraud and duress appellant took her to Franklin county in the state of Alabama and there had her file in the law and equity court of that county a bill for divorce, and that she be awarded the custody of their minor child; that neither appellee nor appellant, at the time, resided in Franklin county, Alabama, but were resident citizens of Tishomingo county in this state. The material allegations of the bill were denied by appellant.

The evidence for appellee, if true, established the allegations of her bill. It showed that appellant, through intimidation and fraud, took her to Franklin county, Alabama, and there by use of the same means forced her to obtain a divorce; that neither of them resided in the state of Alabama, but had their permanent residence in Tishomingo county in this state. The evidence was conflicting. The court believed that on behalf of appellee and found in its decree that the divorce in Alabama was obtained by fraud on the part of appellant, and that neither of them resided in Alabama, but they both resided in this state. The evidence was ample to justify the finding of the court.

The divorce proceedings in Alabama,...