Mahoney v. Mahoney
| Decision Date | 15 August 1990 |
| Citation | 568 So.2d 832 |
| Parties | Glenna MAHONEY v. Gene T. MAHONEY. Civ. 7633. |
| Court | Alabama Court of Civil Appeals |
L.H. Little and Bill G. Hall of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.
Jerrilee P. Sutherlin, Huntsville, for appellee.
The former husband sought a declaratory judgment in the Circuit Court of Madison County, Alabama, concerning the effect of a Minnesota divorce decree on an Alabama decree of divorce a mensa et thoro. The former wife then filed a counterclaim in the Circuit Court of Madison County, requesting that the court award her alimony.
The husband filed motions for summary judgments on both the declaratory judgment issue and the wife's counterclaim, both of which were granted by the circuit court. The circuit court found that, in view of the valid Minnesota divorce decree, the husband was no longer required to make any support payments pursuant to the Alabama divorce a mensa et thoro. Further, the circuit court denied the wife's counterpetition for alimony. The wife appeals.
The only issue properly before this court is whether the wife may maintain an action for alimony against the husband, notwithstanding a valid absolute divorce previously procured by the wife in a foreign jurisdiction, solely upon constructive service.
The record, in pertinent part, is as follows: The parties were married and lived in Huntsville, Alabama, until their separation in 1977. The wife then moved to Minnesota. The husband continued to reside in Alabama. In 1986, the wife filed for divorce a vinculo matrimonii (an absolute divorce) in the Circuit Court of Madison County, Alabama. Prior to obtaining such a divorce, however, the wife amended her complaint to request a divorce a mensa et thoro (a legal separation from bed and board, pursuant to Ala.Code 1975, § 30-2-30). The circuit court then entered its order on March 13, 1987, granting a divorce a mensa et thoro. As part of this limited divorce, the wife was awarded periodic alimony of $500 per month, as well as property worth $10,000.
Within several months, the wife again filed for a divorce; however, such proceedings were commenced in Minnesota. The Minnesota court ultimately ruled that it did not have in personam jurisdiction over the husband and, therefore, could not render any judgment affecting alimony, property, or attorney's fees and costs. Specifically, the Minnesota court found that it had no in personam jurisdiction over the husband, but had jurisdiction only over the marital relationship itself. Therefore, in light of Minnesota's inability to award alimony to the wife, she then filed a petition in Alabama requesting alimony. Her request was denied.
The wife contends that, since Minnesota did not have authority to address the question of alimony, Alabama erred in denying her request. She argues that other jurisdictions have adopted the concept of "divisible divorce" and cites several cases to support her position.
The doctrine of "divisible divorce" was developed in Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948). There, the husband and wife were married and lived in New York until the husband left the wife. She then brought an action in New York for a separation. The husband entered a general appearance, and the court then granted her a decree of separation and awarded her alimony. The husband then went to Nevada and instituted an action for divorce. The wife was notified of the action by constructive service, but entered no appearance. The Nevada court granted the husband an absolute divorce, but made no provision for alimony for the wife. The Supreme Court held that the Nevada court did not have in personam jurisdiction over the wife since she was not before that court. The court held that this situation made the divorce divisible, accommodating the interest of both Nevada and New York in the broken marriage by...
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...Nothing in the statute authorizes a court to order alimony or a division of property if a divorce is not granted. In Mahoney v. Mahoney, 568 So.2d 832 (Ala.Civ.App.1990), the Court of Civil Appeals rejected the notion that a wife could bring an independent action for alimony following a val......
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