Kittel v. Kittel
| Decision Date | 17 January 1967 |
| Docket Number | No. 65--627,65--627 |
| Citation | 194 So.2d 640 |
| Parties | A. C. KITTEL, Jr., Appellant, v. Anne B. KITTEL, Appellee. |
| Court | Florida District Court of Appeals |
John W. Prunty and Michael C. Slotnick, Miami, for appellant.
William W. Charles, George J. Baya, Miami, for appellee.
Before HENDRY, C.J., SWANN, J., and GOODING, MARION W., Associate Judge.
GOODING, MARION W., Associate Judge.
This is an appeal from a final order declaring void a divorce decree obtained in Mexico.
On April 9, 1962, the plaintiff, Anne B. Kittel, appellee herein, brought an action for separate maintenance not connected with divorce. A final decree was entered requiring payments to the plaintiff by the defendant and the plaintiff was permitted to live in the home of the parties.
On November 29, 1963, defendant, accompanied by his present alleged wife, formerly Patricia Ann Green and an attorney from Miami, went to Juarez, Mexico, to secure a divorce. They registered at the Hotel Sylvia, a transient hotel in Juarez.
Although defendant says he went to Mexico to establish residence and perhaps invest in property there, he did not do so.
On November 30, 1963, the day after defendant went to Mexico, he instituted a divorce action there against his wife. The divorce complaint which is in evidence with English translation states on its first page:
'Alexander Charles Kittel, Jr., American citizen, then goes on to read:
'* * * claiming as grounds the incompatibility of temperaments * * *'
which is a ground for divorce in Mexico.
The plaintiff was personally served with due notice of the institution of the suit. The plaintiff then filed the present action asking for an injunction to stop the defendant from prosecuting his divorce action in Mexico. An injunction was entered but later dissolved because of lack of notice to the defendant.
Mrs. Kittel did not appear in the Mexican Court and the divorce action there proceeded ex parte.
December 11, 1963, Mr. Kittel and his party departed Mexico and returned to the United States. He has not since returned to Mexico.
On December 20, 1963, two witnesses appeared before the judge of the Mexican Court to testify as to the marriage of the Kittels on June 11, 1932, but no testimony was given by Mr. Kittel at that time, his affidavit being on record. The Mexican Court entered a decree of divorce on December 20, 1963, which became final on December 27, 1963, under the laws of Mexico.
On this same date, to-wit: December 27, 1963, Mr. Kittel married Patricia Ann Green at Woodbine, Camden County, Georgia.
Subsequently, by amendment, this case was changed to one of declaratory decree and, upon denial of a motion to dismiss, an interlocutory appeal was taken. The District Court of Appeal affirmed the lower court holding that plaintiff had sufficient allegations in her complaint to sustain a direct attack on an alleged void decree. Kittel v. kittel, 164 So.2d 833 (Fla.App.1964).
Consequently, when this cause was remanded to the lower court, the sole question to be determined was: 'Is the divorce decree obtained in Mexico void?' The chancellor entered a final order declaring the Mexican decree of divorce to be void and of no effect.
It is the contention of the defendant, Kittel, that as long as the Mexican divorce was valid where rendered, it should be recognized by the Florida courts as a matter of comity and should not be denied recognition merely because the residing requirements and the grounds for divorce in Mexico are different than they are in Florida.
The plaintiff, Mrs. Kittel, contends that a foreign decree of divorce will not be recognized under the principles of comity if the foreign court rendering it had no jurisdiction.
Defendant cites as authority for his contention the cases of Beckwith v. Bailey, 119 Fla. 316, 161 So. 576 (1935), relating to an Idaho divorce decree, Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926) relating to a Louisiana divorce decree, and Pawley v. Pawley, 46 So.2d 464, 28 A.L.R.2d 1358 (Fla.1950) relating to a Cuban divorce decree.
The holding in the Pawley case, supra, is easily distinguishable from the case at bar. Mr. Pawley had been a resident of Cuba for several years after his marriage. Mr. Kittel was in Mexico, living in a transient hotel, only for a few days. Mr. Pawley secured his divorce, after proper notice, on grounds of desertion, which is a legal ground for divorce in Florida. Mr. Kittel secured his divorce on ground of incompatibility of temperament which is not a ground for divorce in Florida. The Kittels had always lived in Florida and any acts constituting grounds for divorce would necessarily have had to be in Florida. The Pawleys, as...
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