Levine v. Levine, 6 Div. 641
| Decision Date | 12 May 1955 |
| Docket Number | 6 Div. 641 |
| Citation | 262 Ala. 491,80 So.2d 235 |
| Parties | Rachel LEVINE v. Louis LEVINE. |
| Court | Alabama Supreme Court |
McGowen & McGowen and Geo. I. Case, Jr., Birmingham, for appellant.
F. R. Ingram and Henry V. Salemi, Birmingham, for appellee.
This appeal comes to us from the Circuit Court of Jefferson County, in Equity. The appellant-complainant seeks a review of the trial court's ruling on demurrer to her bill of complaint.
The original bill of complaint was in some respects a bill of review and in other respects was an original bill in the nature of a bill of review.
In the bill of complaint, the appellant-wife alleged that she was a resident of the State of New York, and that the appellee-husband was also a resident of New York. A final decree of divorce was granted the parties on 3 November 1949 by the Circuit Court of Jefferson County. A copy of this decree of divorce was made a part of the present bill of complaint which we here review. When the appellee-husband filed his original bill of complaint, which terminated in the decree of 3 November 1949, he alleged that he was a bona fide resident of Jefferson County, Alabama, and had lived and resided in Birmingham, Alabama, prior to the filing of his bill. In the original cause, the husband's attorney had filed an answer and waiver which had been executed by the appellant-wife prior to the filing of the bill of complaint, wherein she admitted the allegations of age, residence, marriage, and denied the allegation with reference to cruelty and voluntary abandonment and demanded strict proof thereof. The wife further alleged that the husband's solicitor had made application for oral examination of him and listed his address as 1634 South 11th Avenue, Birmingham, Alabama. That on the day of the decree, 3 November 1949, the commission of the Court was returned together with the deposition of the husband, which deposition was set out in full and constituted the entire testimony in support of the decree of divorce. The present bill of complaint further alleges that the note of testimony in the original suit was filed by the husband's solicitor and that the final decree was rendered upon the bill of complaint and the testimony of the husband upon submission. The wife, in her present suit, now before this Court, alleges that on 3 November 1949 and for twelve months next preceding the filing of that bill, that the husband was a resident of the City of New York and denies that he was a bona fide resident of Jefferson County, Alabama. Further, that the testimony of the husband was taken prior to 3 November 1949 and at such time as the cause was not at issue. It is alleged that at the time the cause was submitted for final decree, as noted by the note of testimony, said cause was not at issue and was submitted for final decree only upon the bill of complaint and the testimony of the husband.
The wife now complains that she was not represented by counsel in such proceedings and did not at any time live or reside within the State of Alabama prior to the rendition of the first decree. The present bill also alleges that immediately after the rendition of the decree of divorce that the husband immediately returned to the State of New York and has since resided there continuously.
The appellant's present prayer prays that the decree of divorce between the parties be set aside and that the operation of the decree of divorce be suspended pending a final hearing, and that the appellant be awarded additional reasonable solicitor's fees, and for general relief.
A property agreement was originally executed in the City of New York on 26 October 1949. This agreement provided, among other things, for the husband to pay the wife $20,000 as a lump sum settlement, $2,500 of which was paid upon the signing of the agreement, and a receipt of which was acknowledged. Solicitor's fees in the amount of $2,000 were also agreed to by the husband. This property settlement was an exhibit to the first bill of complaint and was made a part of the decree of divorce.
The wife then amended her present bill of complaint by adding paragraph 11, which charged that on the 25th of October 1949, the husband represented to the appellant that he had moved his residence to the State of Alabama and filed a bill for divorcement, and that the Alabama courts had exclusive jurisdiction over the parties to render a final decree of divorce. The appellant now charges that in reliance on her husband's representation, she was induced to make answer to the bill of complaint admitting the residence of the husband and submitting herself to the jurisdiction of the Alabama courts and was thereby prevented from presenting all of her defenses and, in addition, was induced to discontinue an action which was then pending between the parties before the courts of New York. This action directed the payment of certain sums of money by the husband to the wife for her support and maintenance. The present bill alleges that these facts were untrue and that she had a good and valid defense to the divorce proceedings instituted in Alabama to which she filed her waiver and answer.
By subsequent amendment--paragraph 12--the allegations were restated that the appellant and appellee were both bona fide residents of New York City at the time of their marriage. That the appellant filed an action for support and maintenance against the appellee in the courts of New York on 3 March 1948, and that on 4 March 1948, the appellee was ordered to pay the appellant $75 per week pendente lite and that this action was pending and continuing during negotiations with her husband for a lump sum settlement. She then restated the allegations of misrepresentation contained in paragraph 11, and adds that her husband represented to her that it was necessary that the property settlement by which she obtained the first $20,000 be approved by the courts of Alabama. And, that she had submitted herself to the jurisdiction of Alabama for the sole and express purpose of having the property settlement which she had obtained in New York confirmed by the Alabama courts.
Demurrers were addressed to the bill as a whole and to each aspect thereof. The trial court sustained the appellee-husband's demurrers to the present bill on 7 August 1953. It is from this decree on demurrer that appellant perfected her appeal to this court.
The wife having enjoyed the fruits of the original decree, now seeks to declare it void. This she is estopped to do. As was said in Freeman on Judgments, 5th Edition, Volume 3, 1925, Section 1438:
' § 1438. Estoppel to Assert Invalidity.--While a void divorce decree cannot be legalized by act of the parties, they may be estopped to assert its invalidity to their own advantage, as where they have enjoyed its fruits. This is true as to...
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