Hudman v. Hudman

• Decision Date: 13 March 1972
• Docket Number: No. 8725,8725
• Citation: 259 So.2d 619
• Parties: Eva Lorraine Gordon HUDMAN v. Charles A. HUDMAN.
• Court: Court of Appeal of Louisiana — District of US

Page 619

259 So.2d 619

Eva Lorraine Gordon HUDMAN v. Charles A. HUDMAN.

No. 8725.

Court of Appeal of Louisiana, First Circuit.

March 13, 1972.

James B. Thompson, III, Baton Rouge, for appellant.

Charles L. Miller, Baton Rouge, for appellee.

Before LOTTINGER, SARTAIN and ELLIS, JJ.

LOTTINGER, Judge.

This is an appeal from a judgment granting to the plaintiff-wife, Eva Lorraine Gordon Hudman, a divorce from Charles A. Hudman. From said judgment, the defendant has appealed.

The record points out that the plaintiff and defendant were married on May 29, 1954, and four children were born of this marriage. In 1969, the plaintiff went to the State of Arkansas and filed suit for a divorce. The defendant filed a waiver of appearance in that suit, and a divorce was decreed by the Arkansas Court, and provided in part as follows:

'That the parties are members of the white race; that plaintiff is and has been a resident of Ashley County, Arkansas, for more than 90 days prior to the date of this decree; that the Court has full and complete jurisdiction of the parties and the subject matter of this action; * * *.'

Some time after the above mentioned divorce, the defendant-husband remarried. On March 23, 1970 a judgment of separation from bed and board was rendered in favor of Eva Lorraine Gordon Hudman and against Charles Hudman by the 24th Judicial District Court in and for the Parish of Jefferson. On April 13, 1970, a property settlement was signed by both plaintiff and defendant, and made mention of the Jefferson judgment, but not the Arkansas decree.

On March 10, 1971, plaintiff filed the instant suit for divorce based on adultery. Plaintiff contends the defendant is living in open concubinage with the woman whom defendant contends he is now married to. To this suit, defendant filed an exception of res judicata based on the Arkansas divorce decree.

The plaintiff contends that she was not in Arkansas for more than several hours, never saw her Arkansas attorney, and never appeared in Court when the Arkansas divorce decree was obtained. She further alleges that neither she nor the defendant felt the divorce decree from Arkansas was valid.

The defendant alleges that under the 'Full Faith and Credit' clause of the United States Constitution, Article 4, Section 1, the Arkansas divorce decree must be recognized as being valid by a Louisiana court. He further contends that the Louisiana court is bound to give full faith and credit in this divorce case to the Arkansas divorce decree where both parties participated in that proceeding and the Arkansas court determined that it had jurisdiction. He has cited several Louisiana cases which will be discussed below. The Trial Judge in his oral reasons for judgment stated:

'It may be that in a technical, legal sense, the Supreme Court of this state would recognize this to have been a valid divorce under the laws of the State of Arkansas. This Court does not share that opinion.' We are of the opinion that the Trial Judge was in error. He should have recognized the Arkansas divorce decree as a valid judgment of a sister state, and should have maintained the exception of res judicata.

In Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966), the Supreme Court of this state held that where a divorce decree of a sister state is unassailable in that sister state, it must be given full faith and credit by Louisiana courts.

The Boudreaux case, supra, was a tort action by the surviving widow for the recovery of damages. The defense was that she had never been legally divorced from her first husband. From the opinion in the Boudreaux case, we find a complete discussion of the facts and law appropriate:

'Plaintiff was legally married to Owen J. Mire on August 22, 1924 and the parties lived together in this State until the latter part of 1947, when they separated. At that time they were living in Patterson, St. Mary Parish. Thereafter, plaintiff continued to live in the house where the parties had resided previously and she was living there on August 16, 1950 when she filed suit in the Chancery Court, Harrison County, Mississippi seeking a divorce from Mire. Plaintiff actually never resided in the State of Mississippi but visited there for a few days to testify in the divorce proceedings. On August 29, 1950 Mire executed a waiver of service and entry of appearance, conformably with Chapter 244, Mississippi Laws of 1936, which stated:

'I, the undersigned, Owen J. Mire, being advised that my wife, Katherine G. Mire, has filed a suit in the Chancery Court of Harrison County, Mississippi against me for a divorce, do hereby waiver the service of process on me and do enter my appearance in said cause and consent that the same may be tried at the September, 1950 term of said court or at any succeeding term thereof.'

This document was filed in the divorce proceedings, and, on September 22, 1950, a final decree of divorce was rendered by the Chancery Court. Plaintiff subsequently married the decedent, Boudreaux, in December, 1950.

Defendants contend they are entitled to collaterally attack the Mississippi divorce decree on jurisdictional grounds under our holdings in Navarrette v. Loughlin, 209 La. 417, 24 So.2d 672 (1946) and Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) inasmuch as plaintiff, in her deposition taken on the motion for summary judgment, admitted that she was never a resident of Mississippi but had gone there for a few days only to testify in the divorce proceedings. Defense counsel further argue that, under the rulings of the Supreme Court of the United States in the two cases of Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273 (1942) and 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366 (1945) the issue of jurisdiction of the court that rendered the decree can always be the subject of judicial inquiry by the court of another jurisdiction and, when, as here, it has been established that Mississippi lacked jurisdiction over the subject matter because of non-residence of both parties, the decree of divorce is void ab initio and not entitled to Full Faith and Credit. Plaintiff, on the other hand, declares that the judicial pronouncements cited in support of Navarrette v. Laughlin have been markedly altered by later jurisprudence and that the instant case is distinguishable from Eaton v. Eaton. She asserts that the situation here is identical in principle with Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951) and, therefore, the Mississippi decree is not subject to collateral attack. Plaintiff's position is that the divorce decree, being valid under Mississippi law and invulnerable to collateral attack in that State by reason of the personal appearance of Mire in accordance with the laws of Mississippi, is entitled to the complete protection of the Full Faith and Credit Clause under the rulings (in addition to Johnson v. Muelberger) in Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, 1 A.L.R.2d 1355 (1948); Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, 1 A.L.R.2d 1376 (1948) and Cook v. Cook, 342 U.S. 126, 72 S.Ct. 157, 96 L.Ed. 146 (1951).

The district judge sustained the motion for summary judgment and dismissed the suit. The Court of Appeal (First Circuit affirmed. See Boudreaux v. Welch, 180 So.2d 725. On plaintiff's application we...