Keller v. Keller

• Decision Date: 03 March 1988
• Docket Number: No. 86-1952,86-1952
• Citation: 521 So.2d 273,13 Fla. L. Weekly 585
• Parties: 13 Fla. L. Weekly 585 Jesse L. KELLER, Appellant, v. Valerie K. KELLER, Appellee.
• Court: Florida District Court of Appeals

Page 273

521 So.2d 273

13 Fla. L. Weekly 585

Jesse L. KELLER, Appellant, v. Valerie K. KELLER, Appellee.

No. 86-1952.

District Court of Appeal of Florida,

Fifth District.

March 3, 1988.

G. Russell Petersen, P.A., Vero Beach, for appellant.

Stanley Wolfman and Harry C. Greenfield of Stanley Wolfman, P.A., Merritt Island, for appellee.

COBB, Judge.

Appellant, Jesse Keller, seeks review of a final judgment of dissolution, which awarded appellee, Valerie K. Keller, the appellant's 50% interest in a Cocoa restaurant; $350 per week as permanent, periodic alimony; and title to a Mercedes automobile. ¹ In addition to arguing that the trial court abused its discretion in these awards, appellant also contends that no award at all was proper, since the marriage was void ab initio based on his prior marriage, which was dissolved via a Mexican divorce.

We affirm the trial court's ruling denying appellant's motion to dismiss the petition for lack of subject matter jurisdiction based on his prior marriage. The facts presented below show that appellant's first marriage began in 1946, and that he obtained a divorce from his first wife by going into Mexico in 1964 and obtaining a decree. The parties were married shortly thereafter. The record supports the trial court's finding that appellee did not in any way participate in the divorce, and its determination that under the facts of this case appellant is estopped to claim or assert its invalidity.

Restatement (Second) of Conflict of Laws § 74 (1971), states:

A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so.

The Committee Note explains the scope of the rule as follows:

The rule may be applied whenever, under all the circumstances, it would be inequitable to permit a particular person to challenge the validity of a divorce decree. Such inequity may exist when action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is inconsistent with the earlier conduct of the attacking party.

Restatement (Second) of Conflict of Laws § 74 comment b (1971).

In a case substantially similar to the instant case, McIntyre v. McIntyre, 211 N.C. 698, 191 S.E. 507 (1937), the North Carolina Supreme Court was faced with a situation where the husband, with the knowledge of his future second wife, dissolved his marriage with his first wife in an invalid Nevada proceeding. When the second wife petitioned for alimony, the court held the husband to be estopped from questioning the validity of the Nevada decree that he obtained. The court said that voiding the decree would "not seem to be in accord with reason and justice, ... when new rights and interests have arisen as a result of his second marriage." 211 N.C. at 699, 191 S.E. at 507. See also Mayer v. Mayer, 66 N.C.App. 522, 311 S.E.2d 659 (1984), review denied, 311 N.C. 760, 321 S.E.2d 140 (1984).

No Florida case has dealt specifically with the facts presented in the instant case; however, several decisions have touched on the issue of estoppel in the context of allegedly void marriages. In Alexander v. Colston, 66 So.2d 673 (Fla.1953), the issue was ownership of three parcels of land. The land was titled in the name of "Roman Logan and Callie Logan, his wife." Roman had married Callie in 1939, after deserting his first wife, Maggie, in 1911. After the desertion, Maggie entered into a bigamous marriage, which continued at the time of Roman's death in 1948. In an estate proceeding following his death, Maggie and two children born from her marriage with Roman filed suit against Callie, asking to be declared owners of the parcels of land. The lower court held that Callie was the fee simple owner of the three tracts. This determination was affirmed by the supreme court. The court noted the defense raised by Callie, which alleged that at the time of the marriage she was unaware that Roman was already legally married to Maggie, and that she acted in reliance on the marital contract, and therefore at all times during his life Roman would be estopped to deny the validity of the marriage, and also to deny Callie's right to take the property by survivorship. The supreme court held that Callie was an innocent party, with Roman being the actual perpetrator of the fraud. The court determined that since Roman would have been estopped during his lifetime from contending the estate was void because of the bigamous marriage, his heirs were also bound by the estoppel.

In Astor v. Astor, 107 So.2d 201 (Fla. 3d DCA 1958), cert. denied, 120 So.2d 176 (Fla.1959), the court was faced with an appeal from an order of the trial court dismissing the appellant's suit. The suit attempted to set aside an earlier separate maintenance decree (which had been affirmed by the supreme court) on the basis of a New York decree declaring invalid a Mexican divorce. The validity of the Mexican divorce formed the basis of the earlier separate maintenance decree. The Third District quoted the trial court's initial findings in the separate maintenance action as follows:

The defendant, asserting that he has not been divorced from a former wife because the decree of a Mexican court sought and obtained by him is void, contends that the parties are not husband and wife. The contention, in my opinion, is not tenable. It is my view that he cannot question the validity of the Mexican decree because he not only sought and procured it, but took advantage of it by remarrying.

107 So.2d at 203. ² The court went on to hold that the Florida decree estopping Astor from using the invalidity of the Mexican divorce was res judicata as to the parties and, thus, was binding on the appellant.

In Dawson v. Dawson, 164 So.2d 536 (Fla. 1st DCA 1964), the alleged wife brought suit for alimony unconnected with divorce. The husband answered that the parties were not married. The lower court found that the parties were indeed not legally married, but that the husband was estopped to raise the defense against the wife's claim for support. The facts revealed that the wife went to Mexico with the husband with knowledge of his intent to procure a Mexican divorce from his lawful wife, who was an inmate at the state mental hospital, and that the parties thereafter engaged in a Mexican marriage ceremony. The parties held themselves out as married for approximately eight years. The court noted that their relationship was "meritricious from the beginning and they were both guilty of bad faith in flaunting the laws of Florida by resorting to a spurious divorce and falsely parading as husband and wife." 164 So.2d at 538. The court also noted that on at least one occasion, well before the suit was filed, the validity of the purported marriage was brought into question, but that the wife took no steps to have the subject adjudicated. The court ultimately determined that estoppel would not apply, and held as follows:

In Miami Shores Village v. Wm. N. Brockway Post No. 124 of American Legion, 156 Fla. 673, 24 So.2d 33 (1945), the Florida Supreme Court refused to apply the doctrine of equitable estoppel where the parties 'acted while red flags were flying'. In this case they were hoisted all about the place. Good faith is not to be presumed on the part of a mature woman who, as in the instant case, enters into a marriage with a man whom she knows to have been recently married to a living spouse, who has no evidence of a lawful divorce having been granted, and who is aware of a surreptitious attempt on the part of the prospective husband to shake off the bonds of his prior marriage by a...