Lanigan v. Lanigan

• Decision Date: 16 February 1955
• Citation: 78 So.2d 92
• Parties: James A. LANIGAN, sometimes known as James A. Finnigan, and Irene E. Finnigan, Petitioner, v. Sarah C. LANIGAN, Respondent.
• Court: Florida Supreme Court

Page 92

78 So.2d 92

James A. LANIGAN, sometimes known as James A. Finnigan, and Irene E. Finnigan, Petitioner, v. Sarah C. LANIGAN, Respondent.

Supreme Court of Florida, Special Division A.

Feb. 16, 1955.

Warren, Klein & Moore, Miami Beach, and Baker & Baker, Clearwater, for petitioners.

Lovelace, Earle & Deal, St. Petersburg, for respondents.

ROBERTS, Justice.

We here review, on certiorari, an order of the lower court denyig the defendants' motion to dismiss the plaintiff's complaint. The complaint was filed by plaintiff, a Rhode Island resident, against the defendants, Florida residents who are purportedly husband and wife, to have declared null and void a divorce decree which the defendant-husband had obtianed in Nevada against the plaintiff some years ago, and for other relief which will be referred to hereafter. The factual background, as shown by the allegations of the complaint, is as follows:

Plaintiff and the defendant-husband ('defendant' hereafter) were married in 1918 in Rhode Island and lived together there until 1937. In that year, defendant filed suit for divorce against plaintiff, she counterclaimed for a divorce from bed and board, and a decree was entered in her favor awarding her $10 per week for the support of herself and the children of the marriage. The defendant then went to Nedada and filed suit for divorce there against plaintiff. In his first suit, service upon plaintiff (who was, of course, defendant in that suit) was obtained by publication and mailing of notice to plaintiff. Plaintiff appeared in the cause and filed certain defenses therein. This suit was then dismissed by defendant and another suit filed in a different county. Service in the second suit was by publication and personal service of the summons on the plaintiff in Rhode Island. A decree was entered in the second suit in June of 1938. Plaintiff alleges in her complaint that the Nevada divorce decree is void because (1) the affidavit of one Philip Brandt that he had personally served a summons in the cause upon plaintiff in Rhode Island was 'false and untrue', that she had no notice of the suit and thus had no opportunity to defend it; and (2) 'the defendant herein was never a bona fide legal resident of the State of Nevada because of the fact that he went to the State of Nevada for the sole purpose of obtaining a divorce from this plaintiff and that he did not have the intention of making the State of Nevada his home as required by the laws of the State of Nevada.'

In the meantime, in 1940 and again in 1953, the plaintiff had, in Rhode Island, obtained modifications of the original 1937 separate maintenance decree-the 1953 decree awarding her $50 per week as support for herself. It was alleged that the 1953 decree was entered upon personal service on the defendant in Hillsborough County, Florida, and that a judgment for arrearages under such decree in the amount of $2,100 had been entered by the Rhode Island court. It was also alleged that the defendant had, since the entry of the Nevada divorce decree in 1938, entered into two contracts of marriage, the first of which was dissolved by divorce in 1946 and the second of which is purportedly still existing; and that the defendant and his purported present wife own several parcels of real estate as tenants by the entirety.

The plaintiff asked the Florida court to declare that the Nevada divorce decree was invalid and a nullity and, also, that it establish and enforce the Rhode Island judgment for alimony arrearages as a decree of the Florida court.

The defendant filed a motion to dismiss contianing two grounds: (1) improper venue, and (2) that the court had 'no jurisdiction of the subject matter of the cause of action attempted to be stated in the amended bill of comlaint.' Only the latter ground is argued here.

It is clear that the lower court did not err in denying the motion to dismiss based on the ground that the court had no jurisdiction of the subject matter of the suit. Since the decision of this court in Sackler v. Sackler, Fla.1950, 47 So.2d 292, 18 A.L.R.2d 856, it is established that 'our equity courts are open to nonresident wives for the enforcement by equitable processes of final decrees for alimony for the wife and support money for the children awarded by the courts of other states', Haas v. Haas, Fla. 1952, 59 So.2d 640, 642, subject, of course, to whatever equitable defenses, cognizable in this state, the defendant may wish to interpose. Haas v. Haas, supra.

Nor can it be successfully contended that this state is required to give full faith and credit to divorce decrees of a sister state which are void for want of jurisdiction or by reason of fraudulent procurement. Haas v. Haas, supra, 59 So.2d 640; Williams v. State of North Carolina, 1945, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Nelson on Divorce and Annulment, Sec. 33.76. See also the annotation in 1 A.L.R.2d at page 1385, for cases from other jurisdictions decided since the decision in the Williams case, supra. As stated by Nelson, ibid., Sec. 33.76:

'Although the courts of one state have no jurisdiction over the judicial proceedings of another, and cannot alter their judgments or decrees, a suit may be maintained in equity for the purpose of obtaining an anjudication of the nullity or invalidity of a sisterstate divorce that is void for want of jurisdiction or by reason of fraudulent procurement, which will be effective in the state where such adjudication is made.'

The lower court did not, then, err in holding that it had jurisdiction of the subject matter of both phases of plaintiff's suit.

The question of whether the plaintiff stated a cause of action on that phase of her case which attacks the validity of the Nevada divorce decree is another matter and is...