In re Estate of Nolan, Civil 4130

• Decision Date: 09 December 1940
• Docket Number: Civil 4130
• Citation: 56 Ariz. 361,108 P.2d 388
• Parties: In the Matter of the Estate of THOMAS C. NOLAN, Deceased. v. HONORA M. NOLAN, Appellee GRACE NOLAN (Sometimes Known as GRACE I. HUMPHRIES), Individually and as Executrix of the Last Will and Testament of THOMAS C. NOLAN, Deceased, Appellant,
• Court: Arizona Supreme Court

108 P.2d 388

56 Ariz. 361

In the Matter of the Estate of THOMAS C. NOLAN, Deceased.

GRACE NOLAN (Sometimes Known as GRACE I. HUMPHRIES), Individually and as Executrix of the Last Will and Testament of THOMAS C. NOLAN, Deceased, Appellant, v. HONORA M. NOLAN, Appellee

Civil No. 4130

Supreme Court of Arizona

December 9, 1940

APPEAL from an order of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Order affirmed.

Messrs Fennemore, Craig, Allen & Bledsoe, for Appellant.

Mrs. E G. Monaghan and Mr. Thomas A. Flynn, for Appellee.

OPINION

LOCKWOOD, J.

This is a case growing out of the situation discussed by us in Honora M. Nolan, Appellant, v. Grace I Humphries, etc., Appellee, ante, p. 353, 108 P.2d 385. There are four separate appeals in this court arising out of this situation, and under the rule laid down in Stewart v. Phoenix National Bank, 49 Ariz. 34, 64 P.2d 101, we consider the record in each and all of these cases as before us for the purpose of determining the present appeal.

This appeal is by Grace Nolan, hereinafter called appellant, from an order of the probate court granting a family allowance to Honora M. Nolan, hereinafter called appellee, out of the estate of Thomas C. Nolan, hereinafter called deceased, as his surviving wife. The first question involved is whether appellant or appellee was the legal wife of deceased at the time he passed away. Appellee bases her claim on the fact that she was married to Thomas C. Nolan in 1903, and lived with him as his wife until the summer of 1931, when they separated, and that no legal dissolution of such marriage took place until his death. Appellant bases her claim on a divorce obtained by deceased on June 2, 1932, in the Court of the First Instance of the District of Bravos, State of Chihuahua, Mexico, and a marriage ceremony between herself and deceased on June 4, 1932, in Las Cruces, New Mexico. It is admitted that if the divorce in question was a valid one, the marriage is valid, but that if it falls, the marriage of appellant must also fall. We consider, therefore, the validity of the divorce.

The trial judge found the divorce to be invalid, and we examine the evidence to determine whether this finding is sustained thereby. The undisputed facts are as follows: Appellee and deceased had been husband and wife for nearly twenty-eight years, with their matrimonial domicile in Yavapai county, Arizona. On April 8, 1932, deceased filed a petition for divorce in the court above referred to, which we shall hereafter call the Mexican court, alleging, among other things, that he was a legal resident of the City of Juarez, State of Chihuahua, in the Republic of Mexico; that appellee, his wife, had deserted him for more than six months, and that he was "ignorant of her present legal residence." He asked for a divorce, and, on account of his lack of knowledge of her residence, that service upon her be made by publication in the official state newspaper. The publication was duly made in accordance with the Mexican law, and the procedure from that time was in all respects in accordance with that law, and a decree was entered on June 2d establishing the default of appellee, and granting to deceased a decree of divorce, with a right to contract a new marriage. Appellee had no knowledge of these proceedings until long after the final decree was entered, and did not know of the attempted remarriage of deceased until some time after it had occurred. Upon this state of facts, the trial court found the marriage to be invalid.

The Supreme Court of the United States, in considering the effect of the full faith and credit clause of the Constitution (section 1, article IV), in respect to divorce cases, has laid down the following rule: When the matrimonial domicile of the parties is in the state granting the divorce and the proceedings therein are in accordance with the law of such state, the divorce must be recognized as being valid for all purposes by all other states in the Union. When the domicile of the plaintiff is in the state granting the divorce, but the matrimonial domicile and the personal domicile of the defendant are in another state, if the defendant is not served personally within the state granting the divorce, and does not appear in the action, the other states may or may not recognize such a...