Lucas v. Lucas, 2 Div. 302
| Decision Date | 19 March 1953 |
| Docket Number | 2 Div. 302 |
| Citation | 64 So.2d 70,258 Ala. 515 |
| Parties | LUCAS v. LUCAS. |
| Court | Alabama Supreme Court |
Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
McQueen & McQueen, Tuscaloosa and Geo. P. White, Centerville, for appellee.
This is the second appeal in this case. In the first appeal, this court affirmed the decree of the trial court overruling demurrer to the bill of complaint. Lucas v. Lucas, 252 Ala. 626, 42 So.2d 457. The present appeal is from the final decree which granted the relief prayed for and taxed the costs of the proceeding, including compensation allowed the guardian ad litem, against the appellant respondent, Clay M. Lucas.
The bill seeks to have set aside and declared null and void, because of fraud in its procurement, a divorce decree rendered by the Circuit Court of Bibb County, Alabama, in Equity, on January 8, 1943, in a proceeding brought by Robert D. Lucas, now deceased, against Mary Belle Lucas, the appellee-complainant here. Robert D. Lucas died on January 9, 1947. The bill here involved was filed on May 13, 1947, in the Bibb County Circuit Court, in Equity, with the heirs at law of said Robert D. Lucas being made parties respondent. Decrees pro confesso were taken against all named respondents who were of age, except Clay M. Lucas, appellant, who is a brother of Robert D. Lucas. A guardian ad litem was appointed to represent those respondents and unknown next of kin and heirs at law of Robert D. Lucas who were minors or non compos mentis.
It is alleged in the bill that the fraud consisted of the following:
'(a) The decree of said Court was void in that the said R. D. Lucas, or Robert D. Lucas, alleged in his bill that the said Mary Belle Lucas voluntarily abandoned said R. D. Lucas or Robert D. Lucas whereas Your Complainant would show that said allegations were entirely false and known by the said R. D. Lucas or Robert D. Lucas to be false in this; that the said Mary Belle Lucas never did nor on any occasion voluntarily or otherwise abandon the said R. D. Lucas or Robert D. Lucas, but on the contrary stood ready at all times to perform her marital duties toward him.
'(b) For that the jurisdiction of the Court was fraudulently invoked in that the said R. D. Lucas or Robert D. Lucas alleged in said Bill that Mary Belle Lucas was a non-resident of the State of Alabama or that the place of her residence was unknown, whereas Your Complainant would show that said allegations were false and known by the said R. D. Lucas or Robert D. Lucas to be false in that Your Complainant was a resident of the State of Alabama residing at Loachapoka, Lee County, Alabama where she has continually resided since July 1937, which fact was well known to the said R. D. Lucas or Robert D. Lucas.
'(c) For that the decree in said cause was fraudulent and void in that the same was rendered upon publication service as for a non-resident respondent or one whose address is unknown, without notice to the respondent thereto, by publication in the Centerville Press, a newspaper published in Bibb County, Alabama, on decree pro confesso, said respondent Mary Belle Lucas, being at that time a resident of the State of Alabama, residing at Loachapoka, Lee County, Alabama, where she had continually resided since July 1937, which facts were well known to the said Robert D. Lucas or R. D. Lucas.
'(d) For that the decree in said cause was fraudulent in that no notice was ever served on Your Complainant notifying her that such divorce proceedings had been begun against her by the said R. D. Lucas or Robert Lucas and that she had no knowledge of said proceeding and was without fault or negligence in suffering the said decree to be rendered.
'(e) For that the decree in said divorce proceedings was fraudulently obtained in that it was alleged in the Affidavit of Non-Residence that defendant in said cause was a non-resident of the State of Alabama or her address was unknown, whereas defendant Mary Belle Lucas was at that time a resident of Lee County, Alabama, which fact was well known to the said R. D. Lucas or Robert D. Lucas.'
It is further alleged in the bill, as amended, as follows:
'Your complainant would further show that she has reason to believe that the said Robert D. Lucas, deceased, was the owner of certain real and personal property at the time of his death and on said information and belief does hereby aver that the said Robert D. Lucas, deceased, was the owner of certain real and personal property at the time of his death, but after diligent effort your complainant has been unable to ascertain the exact location, nature or amount of said property, and your complainant has been unable to determine who is the legal representative of the said Robert D. Lucas, deceased.
'Your complainant would further show that as the lawful widow of the said Robert D. Lucas, deceased, she would be entitled to a cause of action under the Workmen's Compensation Law of Alabama.
'Your complainant would further show that as the lawful widow of the said Robert D. Lucas, deceased, she would be entitled to a cause of action under the Social Security Laws of the United States.'
The evidence, taken orally before the trial judge, is, in pertinent substance, as follows: Mary Belle Lucas, appellee-complainant, and Robert D. Lucas were married in Shelby County, Alabama, in 1933. In 1934 they moved to Loachapoka, in Lee County, Alabama. From then until 1940, Robert D. Lucas was in and out of Loachapoka. After July, 1940, Mary Belle Lucas did not see her husband again, but testified that she received letters from him after he left, together with contributions to her maintenance and support. She offered in evidence one such letter, which bore the date of December 24, 1946, and contained seventy-five dollars in cash. Appellant-respondent suggested that the date was not in the same handwriting as the body of the letter, and that the postal mark on the envelope had been so obliterated as to make the date unintelligible. On June 13, 1942, an attorney of Shelby County wrote to appellee at Loachapoka advising her that Robert D. Lucas had employed him to file divorce proceedings against her, and requesting that she let him know whether she would object. She wrote the attorney that she did object. The attorney wrote her again on June 27, 1942, acknowledging receipt of her letter and requesting that she reconsider. Then on July 6, 1942, the attorney again wrote her, advising that her husband was insisting on a divorce, and that he was filing a bill for that purpose in the Circuit Court of Shelby County, Alabama. With the letter there was enclosed a copy of the bill of complaint, and also an acceptance of service, and waiver and answer, for execution by appellee. These were not executed by appellee. Said bill for divorce alleged that Mary Belle Lucas voluntarily abandoned Robert D. Lucas in Shelby County in October, 1935. What happened to this proceeding is not made clear. On October 23, 1942, Robert D. Lucas filed a bill for divorce against Mary Belle Lucas in the Circuit Court of Bibb County, Alabama, in Equity, to which was attached his affidavit, dated October 19, 1942, reciting that:
'Mary Belle Lucas * * * is a nonresident of the State of Alabama, or her residence is unknown to the complainant and he, after making diligent inquiry, has been unable to ascertain the same.'
A different attorney represented him in this latter proceeding. Service was had by publication in a newspaper published in Bibb County. There was no personal servive on Mary Belle Lucas. This bill alleged that said parties:
'were legally married at Montevallo, in Shelby County, Alabama, in 1933, and lived together as man and wife until 1935, when she voluntarily abandoned complainant.'
On January 8, 1943, a decree was rendered by the Bibb County Circuit Court, in Equity, granting the divorce and authorizing R. D. Lucas to marry again after 60 days from the date of the decree. On March 8, 1943, he married Josie Jennett, and they lived together in West Blocton, Bibb County, Alabama, until October 1, 1946. On November 29, 1946, Josie Lucas was granted a divorce by the Bibb County Circuit Court, in Equity, on the ground of cruelty. No child was born of this marriage, nor of the marriage of Robert D. Lucas to Mary Belle Lucas. There is no evidence that he was ever married to anyone else. Robert D. Lucas died on January 9, 1947, as a result of injuries received in an accident. Mary Belle Lucas lived in the State of Alabama continuously after she was married to Robert D. Lucas, and lived in Loachapoka, Lee County, Alabama, continuously after moving there in 1934. Loachapoka is about 100 miles, and about a two-hour automobile ride, from West Blocton, in Bibb County. Mary Belle Lucas testified that she knew nothing of the divorce proceedings against her, nor of the marriage of Robert D. Lucas to Josie Jennett, until after his death. Although the bill alleges, on...
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...93 So. 16. There is no allegation of fraud. Taxing the Costs Many decisions of this court state the law here applicable. In Lucas v. Lucas, 258 Ala. 515, 64 So.2d 70, we said: 'The taxation of costs in equity proceedings is governed by Equity Rule 112, Code 1940, Title 7, Appendix, which, i......
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...Printing Co., 213 Ala. 256, 104 So. 506; Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So.2d 536, 151 A.L.R. 765; Lucas v. Lucas, 258 Ala. 515, 64 So.2d 70. The amendments made after remandment have not changed the character of the proceeding and we think the amended bill here under revie......
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