Kant's Estate, In re, 42733

• Decision Date: 20 December 1972
• Docket Number: No. 42733,42733
• Citation: 272 So.2d 153
• Parties: In re ESTATE of Seymour J. KANT, Deceased. Joan KANT, Petitioner, v. Ann Eileen KANT, Individually and as Guardian of Jon R. Kant, et al., Respondents.
• Court: Florida Supreme Court

Page 153

272 So.2d 153

In re ESTATE of Seymour J. KANT, Deceased.

Joan KANT, Petitioner, v. Ann Eileen KANT, Individually and as Guardian of Jon R. Kant, et al., Respondents.

No. 42733.

Supreme Court of Florida.

Dec. 20, 1972.

Rehearing Denied Feb. 8, 1973.

Carr & Warren, Miami, for petitioner.

Cushman & Cushman, Miami, for respondents.

MASON, Circuit Judge.

This cause is before us upon writ of certiorari issued to the District Court of Appeal, Third District of Florida, to review a decision of that court affirming an order of the County Judge's Court for Dade County which denied petitioner's petition for letters of administration. The District Court of Appeal after entering its judgment of affirmance certified to this Court that its decision passed upon a question of great public interest in that it held 'the heirs-at-law of a deceased may show the fallaciousness of a purported judgment of divorce between the purported widow and her former husband when such attack is necessary to show that the purported widow is not the true widow of the deceased.' We thus have jurisdiction under the provisions of Article V, Section 4(2) of the Constitution of Florida, F.S.A.

The facts of the case are set out in the opinion of the District Court of Appeal (In re Estate of Kant, Fla.App., 265 So.2d 524), and it is not necessary to repeat them here except as may be necessary to sustain the decision which we make in answer to the certified question. We affirm the decision of the District Court of Appeal and in answering such question hold that the children of a decedent have a legal standing to attack collaterally the validity of a divorce decree which purported to dissolve the prior marriage of decedent's putative widow and her prior husband. This was the sole question before the District Court of Appeal for decision and it is the only question presented to us on this review.

On direct appeal the District Court of Appeal held that there was inherent in the County Judge's order denying letters of administration to the putative widow the finding that she was in fact not the widow of the deceased because she had not been lawfully divorced from her prior husband who was living at the time of her purported divorce from him, at the time of her marriage to the father of respondent children, and also at the time of the decedent's death whose estate is the subject matter of this suit. Such finding was predicated upon evidence which the County Judge held sufficient to sustain the assertion put forward by respondents herein to the effect that the purported judgment of divorce between petitioner herein (appellant in the Court below) was in deed and fact a forgery and that no judgment of divorce had ever been rendered by the Civil Court of Tlaxcala, Judicial District of Hidalgo, in the State of Tlaxcala, Mexico, upon a complaint filed therein by either of the purported parties to the alleged divorce proceeding, as asserted by the putative widow herein. The effect of such finding by the County Judge was that the petitioner herein was legally incapable of entering into a valid contract of marriage with the deceased father of the respondent minor children and that she was not, therefore, his true widow at the time of his death such as to entitle her to be appointed the administratrix of his estate as his lawful widow.

The District Court of Appeal held that the evidence presented to the County Judge was sufficient to sustain such findings and then proceeded to discuss the legal question before it, viz: the standing of the decedent's children to attack collaterally the validity of the Mexican divorce decree which purported to dissolve the prior marriage between their father's putative widow and her prior husband.

Our role in this certiorari proceeding is not to re-evaluate the evidence before the trial court and which was held sufficient by the District Court of Appeal, but merely to look to the record to determine whether the inferior tribunal had competent substantial evidence before it to support its findings and judgment, while at the same time conforming to the essential requirements of law. 4 U.Fla.L.Rev. 477, 497; Rogers & Baxter, Certiorari in Florida; Bloomfield v. Mayo, Fla.App., 1960, 119 So.2d 417; De Groot v. Sheffield, Supreme Court of Fla., 1957, 95 So.2d 912; Arvida Corporation v. City of Sarasota, Fla.App., 213 So.2d 756. Our review of the record discloses that although the evidence was conflicting on the question as to the validity of the Mexican divorce in question there was substantial competent evidence to support the County Judge's finding that it was invalid, that the putative widow was not in fact ever divorced from the man to whom she was married before she married the decedent, father of respondent children herein, and that she was not, therefore, in law and fact the lawful widow of such decedent entitled to be made the administratrix of his estate. There is no claim here that the County Judge's order did not otherwise conform to the essential requirements of law.

Therefore, the only question before us for decision is whether the minor children of the decedent had standing in court to contest the validity of the Mexican divorce. This is the question certified to us as being of great public interest.

The general rule is that judgments and decrees are not subject to collateral attack where the Court had jurisdiction of the subject matter and of the parties. See Nottingham v. Denison, et al., 63 So.2d 269 (Fla.1953). But this rule is not applicable to judgments or decrees that are void. Such a judgment or decree is a nullity, a mere brutum fulmen, and hence subject to collateral attack. 5 Fla.Jur., Sections 374, 383. That the Mexican divorce of petitioner was declared void is...