Korsrud v. Korsrud

• Decision Date: 06 February 1951
• Docket Number: No. 47810,47810
• Citation: 242 Iowa 178,45 N.W.2d 848
• Parties: KORSRUD v. KORSRUD
• Court: Iowa Supreme Court

Page 848

45 N.W.2d 848

242 Iowa 178

KORSRUD v. KORSRUD.

No. 47810.

Supreme Court of Iowa

Feb. 6, 1951.

Cutting & Cutting, of Decorah, for appellant.

Miller & Pearson, of Decorah, for appellee.

OLIVER, Justice.

This proceeding involves the validity of a default judgment for divorce rendered by and subsequently vacated by the district court of Winneshiek County, Iowa. Plaintiff August Korsrud had lived in Decorah Iowa, until about 1943 when he went to Hawaii where he lived and worked as a civilian employee in the Navy Yard at Honolulu until about November 30, 1948. The record indicates he was in the United States only twice during this period. On the first trip he was in the United States for several months in the fall and winter of 1945. During this trip he arranged to marry defendant. Plaintiff next came to the United States for about forty days during the summer of 1947 when he was procuring the decree of divorce in Winneshiek County.

Defendant lived in Minot, North Dakota. She went from there to Hawaii early in 1946 and March 10, 1946, married plaintiff in Hawaii. After their marriage both parties worked in the Navy Yard at Honolulu as civilian employees. They lived in an apartment in Honolulu. Mrs. Korsrud testified he frequently told her he considered Honolulu his residence.

July 10, 1946, Mr. Korsrud moved from the apartment to another address in Honolulu. Shortly thereafter he instituted in the Circuit Court of Hawaii, an action against Mrs. Korsrud for divorce. In starting that action he stated under oath that he was then and had been for more than the preceding three months a resident of Honolulu and had resided in Hawaii for a continuous period of more than two years last past. When summons was served on Mrs. Korsrud she employed counsel to defend the case. No action appears to have been taken in the case other than its dismissal by plaintiff shortly after he secured the Iowa decree of divorce in 1947. A few months after the parties separated Mrs. Korsrud moved from the apartment they had occupied, and for several years lived in a dormitory for civilian employees. She testified Mr. Korsrud knew where she was living and telephoned her there about some of his belongings sometime between April and July, 1947.

In July, 1947, Mr. Korsrud secured a leave of absence from his employment and came to the United States with the intention of returning to Hawaii. He was in Decorah about forty days. During that period he instituted the action and procured the Iowa decree of divorce here in question. The petition was filed July 22, 1947. It was based upon alleged inhuman treatment. In it Mr. Korsrud swore he had resided for more than the year last past in Decorah, Winneshiek County and still resided in Decorah, and that such residence was in good faith and not for the purpose of obtaining a divorce only. One of his attorneys made the affidavit for publication of the original notice in which the attorney swore the residence of Mrs. Korsrud was unknown. The original notice was published in a local newspaper July 23, 30, and August 6, 1947. It required her to appear on or before August 29, 1947. An affidavit made by Mr. Korsrud stated he had no knowledge and was unable to determine whether Mrs. Korsrud was in the military or naval service of the United States.

Mrs. Korsrud did not appear and the default judgment was taken August 30, 1947, the first day possible. Mr. Korsrud testified he had been a good faith resident of Decorah for the past year and, in fact, for his whole life. He testified also he did not know where his wife was. The court was not advised plaintiff had lived and worked in Hawaii almost continuously since 1943 and claimed that territory as his domicile or that plaintiff knew the occupation and residence of his wife and had telephoned her there shortly before he left Hawaii or that there was pending in Hawaii a divorce suit instituted by plaintiff in 1946. Plaintiff's testimony of inhuman treatment was corroborated by his sister who did not claim to have seen or talked with either party during their married life but who testified she had received some letters from plaintiff. When the divorce was granted plaintiff promptly returned to Hawaii and continued his employment there until November, 1948.

October 1, 1947, he caused to be filed a Discontinuance (Dismissal) of the divorce suit in Hawaii. Soon after that Mrs. Korsrud first learned of the divorce suit in Iowa. She instructed her attorney in Hawaii to take prompt action. A record of the Iowa divorce proceedings was secured and Decorah attorneys were employed.

Her application to vacate the judgment was filed in the District Court of Winneshiek County January 7, 1948. After allegations concerning the two actions for divorce and the residences of the parties the application asserted the court was without jurisdiction to grant the divorce and the divorce was procured by fraud upon the Court which induced it to assume jurisdiction, as well as by fraud upon the defendant which denied her an opportunity to defend. It alleged also, and she testified, she had, at all times, been a kind, loving and dutiful wife, and had a good defense to the action.

The trial court vacated the judgment and decree of divorce, finding the allegations of defendant's petition to vacate were supported by the evidence and were true and that upon the whole record defendant was entitled to have her petition granted.

Plaintiff has appealed.

I. We hold the findings and conclusions of the trial court were correct. Since defendant was a...