Lippincott v. Lippincott
| Decision Date | 27 March 1942 |
| Docket Number | 31241. |
| Citation | 3 N.W.2d 207,141 Neb. 186 |
| Parties | LIPPINCOTT v. LIPPINCOTT. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. "An appeal lodged in this court from a decree rendered in a suit for divorce suspends such decree and brings the case here for trial de novo, and the marital relations continue unchanged until a final determination of such appeal is had." Westphalen v. Westphalen, 115 Neb. 217, 212 N.W. 429.
2. Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414.
3. A judgment of divorce rendered in another state may be collaterally attacked by showing that the court was without jurisdiction, either of the subject-matter of the suit or of the person of defendant, without violating the full faith and credit clause of the federal Constitution.
4. Courts generally have permitted foreign divorce decrees to be impeached "for want of jurisdiction," when other judgments could not have been similarly attacked, because of reluctance to permit foreign courts to fix the marital status of resident citizens, and because of the peculiar character of the marriage relation.
5. The Constitution of the United States confers no power whatever upon the government of the United States to regulate marriage, or its dissolution, in the states. Andrews v Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366.
6. A state has authority over its citizens concerning the marriage tie and its dissolution, and will not allow them to perpetrate a fraud by temporarily sojourning in another state and there procure a decree of divorce without acquiring a legal residence therein.
7. When a wife fraudulently secured a divorce in Nevada, after remaining there less than a week, and both parties thereto were at all times legal residents of Nebraska, such divorce is absolutely void for lack of jurisdiction.
8. Ordinarily, if a wife instituted such proceedings on her own initiative, and obtained a void decree of divorce in Nevada she would be estopped from setting up its invalidity in Nebraska, but if she was under the duress, domination, and compulsion of her husband, and he was present at all times planning and guiding each step, employing and paying the attorneys and witness, then there arises an estoppel against an estoppel which sets the matter at large.
9. There has never been any attempt by this court to fix any rule which would relieve the trial judge of a patient, detailed study of every fact and circumstance relating to each case as it comes on for the allowance of alimony.
10. "Although it has been said that permanent alimony in some measure represents compensation to the wife for the husband's breach of his marital obligations, the generally accepted view is that its function is to provide support to the wife." 27 C.J.S. 937, § 228.
Dryden, Dryden & Jensen, of Kearney, and J. L. Grimm, of Gering, for appellant.
Mothersead & York and Lewis F. Shull, all of Scottsbluff, for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.
This is an appeal by the defendant from a decree granting a divorce and alimony.
On April 5, 1940, plaintiff filed a petition for divorce, alleging that they were married October 30, 1921, at Gering, and that ever since said date the parties have been residents of the state of Nebraska; that at the time of their marriage plaintiff was 18 years of age and defendant 21; that neither possessed any property, but by hard work and their joint efforts they accumulated property; that defendant's mother was an invalid at the time of the marriage, and plaintiff at once entered the household of defendant's father, his brother, then 10 years of age, and his sister, 13 years of age, and in addition to performing all the duties of a farm wife, such as raising a garden, taking care of the poultry and dairy products, she cared for defendant's invalid mother, who died the following summer after their marriage; that the plaintiff looked after the brother and sister of defendant, and cooked for as high as 25 or 30 men in threshing time, that she has assisted defendant to get contracts for threshing, that she has herded sheep, assisted in putting up hay, and by her joint efforts the defendant is now a man of large wealth and means, and owns several productive farms in Scotts Bluff county and Buffalo county, together with a large amount of personal property, and that plaintiff is without means of any kind; that she has conducted herself as a proper and dutiful wife, but defendant has treated her cruelly, because of his quick, ungovernable temper, as a result of which the plaintiff has become sick and ailing. It is further charged that the defendant is now living in a state of open adultery, and plaintiff prays that she be given the care and custody of the two sons, and an absolute divorce and suitable support money and alimony.
The defendant on October 28, 1940, filed his second amended answer, admitting the marriage of the parties, the birth of the children, and denying the other allegations therein.
Defendant for further answer denies that plaintiff and defendant are now husband and wife, and alleges the fact to be that on February 26, 1937, in the district court for Clark county, Nevada, the plaintiff upon her petition secured a decree of absolute divorce, which decree has never been appealed from, modified, or vacated, and is now in full force and effect; that to obtain this divorce the plaintiff employed her own counsel, submitted herself to the jurisdiction of the court in Nevada, secured her own corroborating witness, in accordance with the statutes of Nevada, many sections of the Nevada law being set out in full in the second amended answer, and in accordance with said law plaintiff established her residence at 506 Seventh street, in Boulder City, Nevada, at which place she had her residence from January 2, 1937, up to and including February 27, 1937; that she employed as her attorneys Noland & Noland, of Las Vegas, Nevada, who filed her petition and filed the appearance and waiver of the defendant, in which he entered his voluntary appearance; that on February 26, 1937, plaintiff was examined by her attorney, and testified that she had lived in Boulder City for more than six weeks, and testified to various other allegations tending to prove extreme cruelty on the part of the defendant, and that the plaintiff secured as a corroborating witness one J. T. Franklin, of Boulder City, who testified as her witness, and said he had known the plaintiff since January 2, 1937, and that she had resided in one of his apartments continuously since January 2, 1937; that after the plaintiff had secured the decree of divorce in Nevada, as herein set out, the defendant married one Virginia Lippincott at Salt Lake City on November 4, 1937, and that at all times since the divorce was granted the plaintiff has held herself out as the divorced wife of defendant to friends, neighbors and relatives, and has many times called at the residence of the defendant and his present wife, Virginia Lippincott, and stated at all times that the decree of divorce secured by her in Nevada was valid and in full force and effect; that some time in the year 1937, relying upon the divorce secured by the plaintiff in Nevada, the defendant entered into a property settlement with the plaintiff, and they have at all times operated under said property settlement with reference to the provisions for the support of the plaintiff and sons who were the issue of said marriage; that defendant has complied with all the terms and provisions of said property settlement, has paid all sums of money thereunder, and purchased property for the plaintiff in accordance with said property settlement, and has at all times relied upon the Nevada decree of divorce and the terms and conditions of the property settlement; alleges that the plaintiff is now estopped to question the validity of said Nevada divorce decree, and that the Nebraska court is without jurisdiction to try the validity of said divorce for the reason that, under the terms and provisions of section 1, art. IV of the Constitution of the United States, this court is required to give full faith and credit to the judicial record of the district court for Clark county, Nevada, with reference to said divorce, and is without jurisdiction to decree a divorce in Nebraska, the same being res judicata.
Defendant charges that since April 18, 1940, the plaintiff has failed and refused to abide by the provisions of the property settlement made in 1937; that she has failed to require the attendance of the two minor sons in school; that she has failed to deliver the custody of the two sons to the defendant, in accordance with the property settlement, and has removed them from the jurisdiction of the district court for Scotts Bluff county, and that she has threatened to perform certain acts, the intent of which is to ruin this defendant, both financially and socially, in the community where he resides; wherefore, the defendant prays that the petition be dismissed, and that the terms of the property settlement be enforced, and that the defendant be awarded the care and custody of the two minor sons.
The plaintiff for a reply to the second amended answer denies each allegation therein not herein specifically admitted, and alleges that neither of the parties has at any time ever been a resident, citizen, or inhabitant of the state of Nevada that on February 26, 1937, and for many years prior...
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