Kahn v. Kahn
| Decision Date | 23 September 1948 |
| Docket Number | 16129. |
| Parties | KAHN v. KAHN. |
| Court | South Carolina Supreme Court |
A W. Hlman and Wise, Whaley & McCutchen, all of Columbia for appellant.
C. T. Graydon and John Grimball, both of Columbia for respondent.
This case presents an important question under the Full Faith and Credit Clause of the United States Constitution. Art. IV Sec. 1. It is whether a Florida decree awarding an absolute divorce in a fully litigated proceeding may be subjected to collateral attack in the courts of this State on the ground that the respondent was not domiciled in Florida at the time the decree was granted. There are also certain subsidiary questions presented, but a determination of the issue stated will be determinative of the case.
The appellant, Bessie Kahn, and the respondent, M. B. Kahn, were married in Ohio in 1922, and lived there together for several years. At the time of their marriage, the respondent and the appellant each had two young children by former marriages. As the result of their marriage, they had one child, who is now of age. During the real estate boom in Florida, they moved to that State, where respondent became actively engaged in the business of a building contractor. After spending several years in Florida, respondent and his family moved to Columbia, South Carolina, where he continued in the real estate and construction business. Following a long period of marital discord, respondent left his wife in 1942 and lived separate and apart from her in the city of Columbia.
Shortly after their separation respondent went to Reno, Nevada, for the purpose of obtaining a divorce. Appellant arrived upon the scene, and due to objections raised by her he abandoned his objective at that time and returned to Colubmia, but they continued to live separate and apart. On April 3, 1944, a property settlement was entered into between appellant and respondent, under the terms of which he paid to her the sum of Fifteen Thousand Dollars, and in addition certain hospital, doctor's, and nurse's bills incurred by appellant. Respondent agreed in this property settlement to pay to plaintiff $350 per month as alimony so long as she should remain unmarried; and in the event of her remarriage, the sum of One Hundred and Seventy-Five Dollars per month during the remainder of her natural life. These monthly payments were made regularly on the first day of each month.
On August 4, 1944, respondent, M. B. Kahn, filed a bill of complaint for divorce in the circuit court of the Second Judicial Circuit of the State of Flordia. The complaint alleged extreme cruelty as grounds for divorce, and also alleged that the respondent, M. B. Kahn, was a bona fide resident of the State of Florida. Section 65.02 of Florida Statutes Annotated provides: 'In order to obtain a divorce the complaint must have resided ninety days in the State of Lrodia before the filing of the bill of complaint.' Appellant does not contend that the requirements of 'domicile' as defined by the Florida cases are other than those generally applied or differ from the tests employed by the South Carolina courts. Fowler v. Fowler, 156 Fla. 316, 22 So.2d 817; Evans v. Evans, 141 Fla. 860, 194 So. 215.
In this divorce proceeding, appellant retained Florida counsel, who entered a general appearance, and on September 4, 1944, filed an answer denying the allegations of respondent's complaint, including the allegation as to respondent's Florida residence, and demanding strict proof thereof.
In his bill of complaint, respondent alleged that he was a citizen and resident of the county of Leon, in the state of Florida, and had been a resident of the state of Florida for more than ninety days next preceding the filing of the bill of complaint. Appellant in her answer, as stated, denied the allegations of cruelty and of residence, and on the same day, September 4, 1944, filed a cross bill signed and sworn to by her, in which she sought separate maintenance, alimony pendente lite, solicitor's fees, and suit money. In this cross complaint she alleged that she was 'submitting herself to the jurisdiction of this court, and now desires to file in said court a cross bill for separate maintenance.' On October 11, 1944, an amended bill of complaint was filed by the respondent in the divorce proceeding, and on October 18, 1944, appellant filed an answer to respondent's amended complaint. All of the pleadings were verified.
On the 29th day of January, 1945, hearings were commenced before a Special Master in the divorce proceedings, and continued through the first day of February, 1945. Throughout the entire proceedings, and at all of the hearings, the appellant was present and was represented by counsel, and contested the case. Respondent introduced evidence to substantiate the allegations of his complaint, based upon cruelty, and to establish his Florida residence. Counsel for appellant, Bessie Kahn, had full opportunity to cross examine respondent and his witnesses, and to introduce evidence in rebuttal.
The Special Master, after taking the testimony of the witnesses produced by the parties, filed his Report and Recommendations on March 12, 1945. He found and reported, among other things, that the Florida Court had jurisdiction of the parties and of the subject matter of the divorce suit, and further that the proof in respect to respondent's residence in the State of Florida was bona fide and sufficient. The Special Master made further recommendations and findings to which we shall presently advert.
In her cross bill in the divorce proceeding, appellant alleged that the property settlement entered into in Columbia between her and respondent had been obtained by fraud and coercion, and she demanded an additional sum of One Thousand Dollars per month alimony. Upon completion of the testimony and hearings in Florida, it was stipulated and agreed by counsel for appellant and respondent that further testimony would be taken in Columbia, South Carolina, on February 9, 1945, before a Notary Public to be agreed upon. The testimony at this hearing in Columbia was offered for the purpose of ascertaining the financial ability of the respondent to pay an increased monthly alimony to appellant.
The testimony was taken on February 9, 1945, and on that day a stipulated property settlement was signed by respondent and appellant. This settlement provided for the payment by respondent to appellant of an additional sum of $2,000 in cash, and the payment of $1,000 to appellant's attorney in the Florida divorce proceeding; the payment of all costs in the case, including the sum of $500 as the fee of the Special Master, together with the continued monthly payment of $350 alimony as provided in the original properly settlement of April 4, 1944. It was agreed between respondent and appellant, 'that this is a final irrevocable agreement between the parties,' upon confirmation by the circuit court of Leon County, Florida.
In his Report, the Special Master recommended that a divorce a vinculo be granted respondent against appellant; that the stipulated property settlement of February 9, 1945, be confirmed, and that the property settlement dated April 3, 1944, as to the payment of the sum of $350 per month alimony to the appellant for so long as she remains unmarried, and the sum of $175 per month in the event of her remarriage, be ratified and confirmed.
The circuit court of the Second Judicial Circuit of the State of Florida, on March 12, 1945, entered a final decree of divorce after specifically finding 'that it has jurisdiction of the subject matter and the parties to this cause.' The court proceeded to accept and confirm the Recommendations of the Special Master, and reserved jurisdiction of the parties and of the cause, 'subject only to the provisions of Section 65.15 Florida Statutes Annotated, insofar as the same may in the future be applicable because of any material change in the circumstances of the parties.'
The appellant failed to challenge the decree by appeal to the Florida Supreme Court. Thereafter, at some time not appearing in the record, respondent returned to Columbia, where he now resides, and remarried. Appellant has not remarried, and continues to make her home in Columbia. In accordance with the decree of the Florida Court of date March 12, 1945, respondent paid to appellant the sum of $2,000, paid her attorney's fees, the Master's fee, and the costs of the court, and has since that date continued to pay her the sum of $350 monthly.
More than two years later, on July 15, 1947, appellant instituted the present action against respondent in the circuit court of Richland County. In this action she asks the court to declare the Florida divorce decree invalid for lack of jurisdiction, to set aside the property settlement of April 3, 1944, because of fraud and coercion, to grant her a divorce a mensa et thoro based on respondent's desertion, and for $1,000 monthly as alimony, in addition to temporary alimony, and for attorney's fees. The respondent filed a demurrer to the complaint, which raised the issue now before us that the Florida decree is not subject to collateral attack.
When this cause was heard before the circuit court of Richland County, that court had before it not only the complaint and the demurrer, but also, by agreement of counsel for respondent and appellant, the record of the divorce proceeding in the circuit court for the Second Judicial Circuit of Florida; and it was agreed that the court should have this record before it for consideration in reaching a decision in the present case. When counsel for appellant entered into the aforesaid agreement it was in effect equivalent to amending appellant's complaint by...
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