Irons v. Irons

• Decision Date: 14 February 1962
• Docket Number: No. 29894,29894
• Citation: 242 Ind. 504,180 N.E.2d 105
• Parties: Robert K. IRONS, Appellant, v. Kathryn Cosette IRONS, Appellee.
• Court: Indiana Supreme Court

Page 105

180 N.E.2d 105

242 Ind. 504

Robert K. IRONS, Appellant, v. Kathryn Cosette IRONS, Appellee.

No. 29894.

Supreme Court of Indiana.

Feb. 14, 1962.

Concurring Opinion Feb. 16, 1962.

John D. Cochran, John B. King, Baker & Daniels, Indianapolis, of counsel, for appellant.

George L. Pepple, Goshen, D. Russell Bontrager, Elkhart, pepple, Yoder & Ainlay, Goshen, Bontrager & Spahn, Elkhart, of counsel, for appellee.

LANDIS, Judge.

Appellee has filed petition for rehearing, and from the brief in support thereof it appears the only substantial question here raised by appellee is whether our previous opinion handed down November 22, 1961, was in error in the determination it made from the evidence of the facts upon which the opinion was based.

In passing on appellee's petition for rehearing, we believe it appropriate to state here that it is not our province as a reviewing court to consider whether the practice of obtaining so-called ex parte out of state divorces, by persons who have spent much of their married life in this state, is good or bad for the litigants or society in general. Certainly many arguments could be levelled against the propriety of such divorces. If a change in our substantive law in this respect is desired, resort should be had to the state or national legislatures, which have a wide area of discretion in this field, so long as they act within constitutional bounds

Courts, however, in performing the judicial function ascribed to them, are called upon to determine controversies, including divorce actions, according to recognized legal principles and the trial court and this Court are governed thereby. We shall now proceed to a consideration of the legal aspects of the petition for rehearing.

As stated in our previous opinion, in order to ascertain if there was substantial evidence to sustain the trial court's decision upsetting the decree of the Nevada court, we considered the undisputed evidence introduced in the court below bearing upon the question of domicile, and, in case of conflict, that favorable to appellee.

Appellee on rehearing objects to our considering the undisputed evidence of appellant-husband to determine whether there was evidence in the record to sustain the trial court's decision upsetting the Nevada decree, contending the trial court had a right to reject such evidence, citing: Schmittler v. State (1950), 228 Ind. 450, 93 N.E.2d 184; McKee v. Mutual Life Ins. Co. of New York (1943), 222 Ind. 10, 51 N.E.2d 474; Wright v. Peabody Coal Co. (1948), 225 Ind. 679, 77 N.E.2d 116. We have no quarrel with the rule cited in these cases but desire to point out that we did not consider the undisputed evidence of appellant-husband in order to reverse, but in order to ascertain if there was sufficient evidence to sustain the trial court's decision upsetting the Nevada decree. In the case of Ulrey v. Ulrey (1952), 231 Ind. 63, 106 N.E.2d 793, the husband's undisputed testimony undoubtedly had just this effect as portions of it were of significance in indicating the husband's intention to return to Indiana after obtaining the decree in Nevada.

Appellee's contention is entirely without merit, for if we completely ignore the undisputed evidence of appellant-husband, to which appellee objects, we have only the evidence as to appellant's retention of interests in some corporations in Indiana and his filing of corporate and tax reports in this state. This evidence we held in our earlier opinion was insufficient to invalidate the Nevada court's determination of domicile.

It is important to recall that in the court below, the burden was not upon appellant-husband to sustain the Nevada decree, but rather upon appellee-wife to introduce evidence sufficient to entitle the Elkhart Circuit Court to determine the previous Nevada proceedings were invalid because of lack of jurisdiction. Unless that showing was made, the Elkhart Circuit Court had no authority to overturn the Nevada decree and to try the divorce proceedings on the merits over again. Not only is a prior adjudication by a court of general jurisdiction presumptively valid until set aside because of some invalidity, but a decree of a sister state under the U. S. Constitution ¹ is entitled to full faith and credit unless the decree is affirmatively shown by the facts to be invalid because of the violation of some legal or equitable principle affecting the court's authority or jurisdiction to act.

As previously indicated and as stated in our earlier opinion, the retention by appellant of interests in some Indiana corporations, and the filing of corporate and tax reports in Indiana, did not in our judgment amount to substantial evidence which would support the decision below setting aside the previous adjudication as to domicile by the Nevada court. ² In fact appellee does not now on rehearing specifically contend that such evidence was sufficient to rebut appellant's acquisition of a domicile in Nevada as held by the Nevada court.

It follows we must conclude, as we have in the previous opinion, that the decision of the court below was not sustained by sufficient evidence.

The last specification of the petition for rehearing is that the Court failed to give a decision in writing of a substantial question presented by appellee's brief, to-wit: whether appellant in his original brief had complied with Rule 2-17 of this Court. This technical question appearing in the petition for rehearing is not mentioned whatever in the argument section of appellee's brief on rehearing. While the rules do not require briefs to be filed in support of the petition for rehearing, if briefs in support thereof are filed, we believe it only reasonable to conclude petitioner has waived questions not discussed in the briefs on rehearing.

With regard to the property, custody and related rights of the parties, we have heretofore made reference in a footnote to recent decisions discussing the in rem aspects of divisible divorces, and as no question has been raised on rehearing regarding them, we do not believe any further discussion of such matters is necessary or appropriate here.

The petition for rehearing is overruled.

JACKSON and BOBBITT, JJ., concur.

ACHOR, C. J., concurs in result with opinion.

ARTERBURN, J., dissents without opinion.

ACHOR, Chief Justice (concurring).

Inasmuch as I heretofore concurred in the result of the majority opinion, without writing an opinion in support of my position in the case, and inasmuch as in many respects I am also in agreement with the principles of law stated but not the conclusion of the dissenting opinion written by Arterburn, J., and inasmuch as it appears from the petition for rehearing that the opinions, as written, have not, to the satisfaction of the appellee, resolved the issues of law or the effect thereof, as applied to the facts of this case, it, therefore, seems appropriate that I make this statement of clarification in support of my concurrence in the result of the majority opinion. ¹

My concurrence is based upon the following considerations:

One: This is not an ordinary appeal in which this court may look only to the facts most favorable to and in support of the decision of the trial court, from which this appeal is taken. In this case we are confronted with the fact of two judgments for divorce involving the same parties, which...