Mabson v. Mabson

• Citation: 140 So. 801,104 Fla. 162
• Parties: MABSON v. MABSON.
• Decision Date: 02 February 1932
• Court: Florida Supreme Court

140 So. 801

104 Fla. 162

MABSON v. MABSON.

Florida Supreme Court, Division B.

February 2, 1932

Suit in the nature of a bill of review by Kathleen Anna Mabson against H. B. Mabson. From an adverse decree, complainant appeals.

Affirmed. Appeal from Circuit Court, Polk County; H. C Petteway, judge.

COUNSEL

Rogers & Rogers, of Ocilla, for appellant.

John S Edwards and Eldridge Cutts, both of Lakeland, for appellee.

OPINION

DAVIS J.

This is an appeal from a decree of the circuit court of Polk county sustaining a plea interposed to a bill in the nature of a bill of review in a divorce proceeding and dismissing such bill.

It appears from the pleadings that Kathleen Anna Mabson, the appellant, and Hendon B. Mabson, the appellee, became husband and wife and in due course established their matrimonial domicile at Winter Haven, in Polk county, Fla.; that the matrimonial domicile of both parties was in Polk county on March 30, 1927, at which time the wife left the husband and went to New York City. On April 4, 1927, the husband instituted in the circuit court for Polk county a divorce suit which was prosecuted to a final decree, and a divorce on the ground of adultery was therein granted on May 4, 1927. The process in such divorce suit was by publication under section 4895, C. G. L., section 3111, R. G. S.

At the time of the institution of the suit in Florida, notice of such suit was duly mailed to the wife. She admits that she received such notice, but contends that it was void because the return day was only twenty-seven days from the date of the order for constructive service, and that the period of newspaper publication of such notice was therefore not in strict accord with the above-cited Florida statutes regulating same. It is conceded by the husband that the notice was not published for a full period of twenty-eight days, but was only published twenty-seven days prior to the return day thereof. The Florida court recited by its order confirming a decree pro confesso that it had acquired jurisdiction, and shortly after this a decree of divorce was granted in the Florida case. The wife, in the meantime, still being in New York, instituted a suit there against the husband for separate maintenance and support. This suit, based on personal service on the husband, was brought May 14, 1927, and on February 5, 1929, the wife's bill for separate maintenance and support was finally decided against her and dismissed by the New York courts.

The ground of dismissal of the New York proceedings appears to have been that the matrimonial domicile of the parties was in Florida and not in New York at the time the New York suit was instituted. The New York court in reaching its decision referred to the fact that the Florida court had so held by granting to the husband a final decree of divorce, by reason of which the New York suit between the same parties would not lie. The decree of the New York Supreme Court, 225 A.D. 744, 232 N.Y.S. 802, was upheld by the Court of Appeals of that state, 251 N.Y. 584, 168 N.E. 436, which is the highest appellate court in that jurisdiction.

After the New York proceeding was finally terminated, the wife came back to Florida, made an investigation of the record in the divorce proceeding which had been carried to a conclusion against her here, and, finding the above-mentioned technical defect in the manner of publication in the newspaper of notice of constructive service against her in that suit, thereupon filed the bill of complaint in the nature of a bill of review which forms the basis of the proceeding now before this court on this appeal.

In Shrader v. Shrader, 36 Fla. 502, 18 So. 672, this court held that, in divorce proceedings where constructive service is attempted, if there is a failure to pursue the essential requirements of the statute, the decree rendered on such illegal constructive service is void as to the parties who have not appeared or pleaded in the case. It was further held in that case that, where the court in a divorce proceeding had acquired no jurisdiction over the person of the defendant by reason of defective constructive service by publication upon her, such defendant in the original suit was entitled to file an original bill in chancery in the nature of a bill of review, whereby to assail and set aside a decree of divorce which had been rendered against her, which was null and void because of defective public service by publication.

The bill of complaint in the present proceeding is a bill in the nature of a bill of review to attack the divorce decree which was rendered in favor of the husband against the wife in the case to which we have heretofore made reference, and the predicate for it is the cited case of Shrader v. Shrader, supra, upon the authority of which the appellant relies for the right to maintain it.

As a reply to this bill in the court below, the husband filed a plea which is here denominated as a plea of res judicata. This plea sets up as a defense to the bill in the nature of a bill of review, all of the proceedings which were had between the parties in the state of New York, including an adjudication made by the New York court to the effect that, because the Florida court had previously decided that it had jurisdiction to render a divorce decree to the husband, the New York court had no jurisdiction to render a decree of maintenance and support to the wife.

The chancellor sustained the plea as good upon two grounds: One, as a plea of res judicata; and, two, as a bar to the suit itself upon equitable grounds.

We are not favorably impressed with the contention that the plea was properly held good as a plea of res judicata. Many cases have been cited to support it on that basis, but in our opinion these cases are inapplicable to a situation such as we have here. Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365, 53 A. L. R. 1141; Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039; Harju v. Anderson, 133 Wash. 506, 234 P. 15, 44 A. L. R. 450; Dobson v. Pearce, 12 N.Y. 156, 62 Am. Dec. 152; Bailey v. Wilson, 52 Misc. 644, 103 N.Y.S. 1021.

In all of the cases cited, the proposition involved was whether or not a judgment of the court of one state which had been rendered to enforce a judgment of the court of another state could, when sued upon in the courts of a third state, be attacked for grounds which would have rendered the judgment unenforceable in the second state. No such situation is involved here. This is a suit filed in a Florida court setting up the contention that the very court in which it was filed had previously rendered a void decree against the complainant which should be set aside upon the basis of facts brought to the attention of the court in the bill in the nature of a bill of review which would have prevented the entry of the decree attacked had such facts been then made to appear to the court. Such a proceeding is not a collateral attack, but is a direct attack upon the decree of the circuit court of Polk county. The fact that an attempt had been made to collaterally attack the decree of the circuit court of Polk county in a proceeding between the same parties in the state of New York in which proceeding the courts of the state of New York have adjudged that the Florida decree was not subject to such collateral attack cannot be said to be res judicata of a controversy in the Florida courts between the same parties respecting the Florida court's jurisdiction in the previous suit. See Coral Realty Co. v. Peacock Holding Co. (Fla.) 138 So. 622, decided at the present term.

This court is committed to the doctrine that the courts of this state have the right to determine whether judgments or decrees which have been entered by them on constructive service were validly entered, and have outlined the procedure by which such determination can be made. Shrader v. Shrader, supra; Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694; Sawyer v. Gustason, 96 Fla. 6, 118 So. 57; Bryant v. Bryant, 102 Fla. ----, 133 So. 635.

The right of a Florida court to determine whether or not its own jurisdiction has been properly invoked and exercised cannot be barred by what has been determined by the courts of any other state. The courts of this state retain at all times jurisdiction to entertain a bill or other proceeding making a direct attack upon the validity of decrees rendered here, so whatever may have been decided in some other state in a collateral proceeding, whether between the same parties or not, would constitute no bar to a proceeding in the courts of this state in which the courts of this state are called upon to determine for themselves their own jurisdiction and the regularity of their own judgments.

The chancellor, however, found that, even if the plea was not good as a plea of res judicata, it was good as an equitable bar to the bill which had been filed by the wife against the husband to set aside the divorce decree rendered by the Polk county circuit court.

The record shows clearly that, regardless of the time of the publication of the notice attempted to be published in the newspapers, the wife received through the mails a copy of the notice which had been mailed to her by the clerk of the circuit court.

This mailing is provided for by the statutes of this state and constituted a part of the prescribed method for making constructive service on the defendant.

At the time the husband sued his wife for divorce, the circuit court of Polk county had potential jurisdiction of both the parties, because...