King v. King

• Decision Date: 12 December 1959
• Docket Number: No. 41560,41560
• Citation: 347 P.2d 381,185 Kan. 742
• Parties: Martha KING, Appellant, v. George W. KING, Appellee.
• Court: Kansas Supreme Court

Page 381

347 P.2d 381

185 Kan. 742

Martha KING, Appellant, v. George W. KING, Appellee.

No. 41560.

Supreme Court of Kansas.

Dec. 12, 1959.

Syllabus by the Court

1. The parties in this action were married and lived in Kansas. Each sought a divorce from the other and a division of property in an action in Kansas. A divorce was denied and the trial court refused to divide the property. The wife subsequently established a domicile in California, then filed an action for alimony, separate maintenance and a division of property in Kansas procuring personal service on the husband. Thereupon the wife filed an action for divorce in California and secured a divorce in that state by default, the absent husband receiving constructive service only. The husband in the meantime cross-petitioned for divorce in the Kansas action and the wife answered by setting up the California decree. The trial court upon motion struck the wife's answer, and it is held: The allegations of the wife's answer to the husband's cross-petition must be taken as true and the California devorce decree is entitled to full faith and credit. Therefore, the trial court struck a meritorious defense from the wife's answer and erred in so doing.

2. An action for alimony, separate maintenance and property division pursuant to G.S.1949, 60-1516, is an entirely different cause of action from one of divorce.

3. Under the provisions of G.S.1949, 60-1518, it has become and is the settled policy of this state to recognize foreign decrees of divorce as being effectual to terminate the marriage relation of the parties, if such decree is procured in harmony with the statutes of the state where rendered.

4. A valid decree of divorce rendered in another state is a bar to subsequent proceedings in a court of this state wherein a decree of divorce is sought between the same parties, and the general rule applies also where the decree of divorce was rendered in proceedings instituted in the other state after the proceedings were commenced in this state in which it is sought to be availed of as a defense. Such an action is simply one of concurrent jurisdiction in the courts of two states, and the judgment or decree first rendered dissolving the marriage relation concludes the question in the court of the other jurisdiction. The foreign decree of divorce must, however, have been a valid decree of divorce and procured in harmony with the statutes of the state where rendered.

5. In a case such as stated in Syllabus p1, the trial court has authority in the original action filed by the wife in this state for alimony, separate maintenance and a division of property, to hear and determine all matters relating to alimony and to the property rights of the parties, within the scope of the wife's answer and reply, within two years after the decree of divorce in the California case pursuant to G.S.1949, 60-1518, without the filing of a new and separate petition.

6. Either party may proceed under the provisions of G.S.1949, 60-1518, where a divorce decree entered in another state is given full faith and credit and the conditions of this section of the statute are otherwise fulfilled. Thus, where a wife obtains a valid decree of divorce in conformity with the laws of another state by constructive service only, in which action her husband, then residing in Kansas did not personally appear or defend, she is not precluded from instituting a proper action or proceeding in Kansas within two years as authorized by the provisions of such statute.

7. An order sustaining a motion to strike is appealable as a final order if it in effect deprives the defending party of a meritorious defense which, if supported by evidence, would defeat all or part of the petitioner's cause of action.

Frank Hahn, Phillipsburg, argued the cause, and Geo. C. Wingerson, Hill City, was with him on the brief for appellant.

W. H. Clark, Marion W. Chipman, and Kenneth Clark, Hill City, were on the brief for appellee.

SCHROEDER, Justice.

This is an appeal in an action which was instituted by a California resident for alimony, separate maintenance and property division in the district court of Graham County, Kansas.

The underlying question is whether, on the facts and circumstances herein presented, a decree granting the wife a divorce in the State of California is entitled to full faith and credit.

Martha King, appellant herein and plaintiff below, was married to George W. King, appellee herein and defendant below. They are the same parties who appeared before this court in King v. King, 183 Kan. 406, 327 P.2d 865. There both parties asked for a divorce and for a division of property in the district court of Graham County, Kansas. The trial court on September 24, 1957, denied a divorce and refused to make a division of the property. On appeal this court affirmed the judgment of the trial court.

On the 15th day of July, 1958, Martha, who had in the meantime moved to and had become a resident of California, filed an action in the district court of Graham County, Kansas, which is the matter here for consideration. Her petition was for alimony, separate maintenance and division of property.

Thereafter, but before any action was taken in this case, Martha filed an action for divorce in California. Service of summons in the California case was made upon George by the sheriff of Graham County, Kansas, in November, 1958. This was the equivalent of constructive service.

The next chronological event in the course of time was an answer and cross petition filed by George in the Graham County action on December 8, 1958. By his cross petition George requested a divorce from Martha.

On the 29th day of December, 1958, the California court entered a decree granting Martha a divorce by default. (Under California law the divorce decree does not become final for one year.)

On the 22nd day of January, 1959, Martha replied and answered the cross petition of George by setting forth the California divorce decree and requested the district court in Graham County to determine all property rights and indebtedness in Kansas pursuant to G.S.1949, 60-1518.

George thereupon filed his motion to strike those portions of Martha's answer and reply setting forth the divorce decree in California and the request for a determination of property rights and indebtedness in Kansas. The trial court pursuant to this motion struck the paragraphs of Martha's answer and reply setting forth the California divorce decree and the request for a determination of the property rights of the parties. It is from this order that Martha appeals.

In ruling upon a motion to strike, the facts alleged must be taken as true. See, Turner v. Benton, 183 Kan. 97, 325 P.2d 349. Therefore, for purposes of this appeal, it must be assumed that the facts recited in the answer and reply of Martha, which were stricken by the trial court, were true--that Martha was a resident of California, that the California court had jurisdiction and duly entered a decree divorcing Martha from George on the 29th day of December, 1958.

It is clear under Kansas law that the action filed by Martha in Graham County, Kansas, pursuant to G.S.1949, 60-1516, is an entirely different cause of action from one of divorce. Wohlfort v. Wohlfort, 116 Kan. 154, 225 P. 746, 40 A.L.R. 538; Kraus v. Kraus, 171 Kan. 254, 232 P.2d 233; Schaeffer v. Schaeffer, 175 Kan. 629, 266 P.2d 282; and Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233. Under the circumstances, Martha being a resident of California could not have filed an action for divorce in Kansas by reason of the lack of residency. Asling v. Asling, 88 Kan. 331, 128 P. 185; Long v. Long, 113 Kan. 459, 214 P. 1116; and Wible v. Wible, 153 Kan. 428, 110 P.2d 761. She was free to file an action for divorce in California after she had filed her petition in Kansas for alimony, separate maintenance and division of property.

The recognition which the courts of one state can be compelled to give to a divorce decree rendered by a court of a sister state depends upon what is decided upon the subject by the Supreme Court of the United States under Article 4, Section 1 of the Constitution of the United States, providing that 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'

There are several leading cases on the question of the recognition which the Constitution demands, where the divorce decree is rendered at the domicile of one party only. Atherton v. Atherton, 1901, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Haddock v. Haddock, 1906, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867; and Davis v. Davis, 1938, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26.

On the facts presented in the instant case Haddock v. Haddock, supra, is in point. There the parties were married in New York where both lived at the time. The husband went to Connecticut, established his domicile there, and secured a divorce in that state, the absent wife being served by publication only. Later the wife brought a separation suit against Haddock in New York. He set up, in defense, the decree he had received in Connecticut. This was rejected by the court in the New York proceedings. Upon appeal to the United States Supreme Court, it was held that there was no violation of the requirement of full faith and credit. It is important to note the Atherton decision, decided five years earlier in 1901, reached the contrary conclusion on the ground that the divorce which was denied full faith and credit by the sister state was granted at the matrimonial domicile of the husband and wife. In the Haddock case it was not. Mr. Justice Holmes dissented in the Haddock case [201 U.S. 562, 26 S.Ct. 552]. He said: 'I cannot see any ground for distinguishing between the extent of jurisdiction in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired.' He prophesied: 'I think that the decision not...