Mapes v. Mapes

• Decision Date: 22 March 1946
• Docket Number: 29771.
• Citation: 24 Wn.2d 743,167 P.2d 405
• Parties: MAPES v. MAPES.
• Court: Washington Supreme Court

167 P.2d 405

24 Wn.2d 743

MAPES v. MAPES.

No. 29771.

Supreme Court of Washington

March 22, 1946

Department 1

Action by James Mapes against Mabel Mapes for divorce, wherein defendant filed cross-complaint claiming property rights and setting up a divorce obtained by defendant in another state. The trial court entered an interlocutory order granting plaintiff a divorce, and defendant appeals.

Affirmed.

MALLERY J., dissenting.

Appeal from Superior Court, Skagit County; Willard L. brickey, judge.

C. A Schneider, of Seattle, for appellant.

Welts &amp Welts, of Mount Vernon, for respondent.

SIMPSON Justice.

This action was instituted by plaintiff for the purpose of securing a divorce from defendant. In the complaint it was alleged that defendant became infatuated with another man, and on or about September 18, 1944, left the state of Washington with him; that by note defendant informed plaintiff she was going to live her own life and would never return to plaintiff or their family. Plaintiff also asked for the care, custody, and control of the two minor children of himself and defendant, together with the property belonging to the parties to the action.

Defendant could not be located in the state of Washington, and summons was accordingly published. Before trial, however, defendant served and filed an answer and cross-complaint. The answer contained a general denial of the charges made against her by the plaintiff. By way of affirmative answer, defendant alleged that plaintiff had treated her in a cruel manner, in that he quarreled, nagged, and found fault with her, and at times was morose and sullen, had fits of temper, and threatened to kill himself. She further alleged that on September 18, 1944, she left plaintiff and established a home in another state.

By way of cross-complaint, the defendant alleged that after she left the state of Washington, she established her residence and domicile in the state of Nevada, and in accordance with the laws of that state commenced an action for divorce against plaintiff and on the 21st day of December, 1944, was granted a divorce from plaintiff. The defendant alleged further that the court in Nevada did not divide the property belonging to herself and plaintiff, and that it was presently owned by them in common. The reply put in issue the allegations made by defendant. After trial, the court made its findings of fact and conclusions of law and based thereon, entered its interlocutory order granting a divorce to plaintiff. Defendant thereupon appealed to this court. She contends that the court erred in the following particulars: (a) holding the Nevada divorce invalid; (b) holding a certain note an obligation of the community; (c) the admission of testimony; (d) the refusal to grant sufficient attorneys' fees; (e) distributing the property; (f) refusing to hear application for change of custody of one child; and (g) entering findings of fact and conclusions of law and judgment.

The salient facts may be stated as follows: appellant and respondent were married May 7, 1926. Two children, Gerald and Donald, were born to them. At the time of trial Gerald was nineteen years old, and Donald was sixteen years of age. Gerald was in the navy and Donald was attending high school. Appellant and respondent were childhood sweethearts and after their marriage lived an especially happy life together until sometime during the year 1944. During their married life the parties accumulated property consisting of a farm, some cows, certain farming equipment, household goods, and an automobile, all of a total value of $25,250.50. Their liabilities total $11,000. Of the liabilities, $5,000 was in the form of a note due and owing to respondent's father.

The following facts justified the trial court in finding that appellant was to blame for the separation: during the early part of the summer of 1944, appellant became acquainted with a man named Ernie Ruff. Shortly thereafter appellant and Ruff were seen together in his car on many occasions, and on many other occasions were found kissing and making love to each other. September 18, 1944, appellant journeyed to Seattle from which place she called Ruff and the two started for Nevada in his car. The first two nights they stayed in an auto court somewhere between Seattle and Tacoma. After that they stayed in auto courts in Pendleton, Oregon; Boise, Idaho; and Ogden, Utah; and finally arrived at Las Vegas, Nevada.

Appellant stated that she went to Nevada 'to get work and then get a divorce.' She arrived in Las Vegas, September 22, 1944, and November 8, of that year started her action for divorce. December 21, 1944 the Nevada court granted her a decree of divorce, and on the same day she married Ruff. They then departed for Los Angeles, California. During the time appellant was in Las Vegas, she contrived to have her mail sent from Los Angeles.

Was the Nevada divorce valid?

The judgment in that case read as follows:

'In the Eighth Judicial District Court of the State of Nevada in and for the County of Clark.

'Mabel Mapes, Plaintiff,

v.

'James Mapes Defendant.}

No. 22422

Endorsed

Filed Dec. 21, 1944

Lloyd S. Payne, Clerk

By Vivian Phillips, Deputy

'Decree of Divorce

'This cause came on regularly for trial on the 21st day of December, 1944, Before the above-entitled Court, sitting without a jury, the Plaintiff appearing in person and being represented by Wiley and Ralli, her attorneys, and the Defendant having failed to answer, demur, or otherwise plead herein, although duly and regularly served with a certified copy of the Complainant attached to a copy of the Summons issued herein, on the 20th day of November, 1944, at Skagit County, State of Washington, and more than thirty days, exclusive of day of service having expired since said service upon the Defendant, and no further time having been granted, his default default was regularly and duly entered on the 21st day of December, 1944, for failing to answer or make defense to Plaintiff's Complaint herein; after hearing the evidence adduced in support of Plaintiff's Complaint, considering all and singular the law and the premises, the Court finds it has jurisdiction over the parties hereto and over the subject matter hereof and that each and every of the allegations contained in Plaintiff's Complaint are true, and that Plaintiff is entitled to a Decree of Divorce from the 'Defendant on the ground as set forth in the Complaint on file herein.

'Now, therefore, it is hereby ordered, adjudged and decreed that the marriage relationship now and heretofore existing between the Plaintiff and Defendant be, and the same is, hereby dissolved, and the parties are restored to their former status as single persons.

'Dated and done at Las Vegas, Clark County, Nevada, this 21st day of December, 1944.

'George E. Marshall

'District Judge'.

It is appellant's contention that the divorce decree given her by the Nevada court dissolved the bonds of matrimony existing between herself and plaintiff, this upon the ground that the courts of this state must recognize as valid the judgments of a sister state under the full faith and credit provision of the Federal constitution, art. 4, § 1.

Respondent contends that the Nevada divorce was invalid for the reason that the court in that state did not have jurisdiction to hear the case in that appellant was not a resident of Nevada at the time she instituted her action.

Proof of residence is essential, and a divorce obtained with the aid of an assumed residence is not in good faith, and does not give the court jurisdiction of the case. Domicile or residence is mainly a question of intent which may be shown by the testimony of the parties and by surrounding circumstances. Wilkes v. Wilkes, 245 Ala. 54, 16 So.2d 15; Gilmore v. Gilmore, 204 Ark. 643, 164 S.W.2d 446; Phillips v. Phillips, 146 Fla. 311, 1 So.2d 186; Gates v. Gates, 197 Ga. 11, 28 S.E.2d 108; Wright v. Wright, 350 Mo. 325, 165 S.W.2d 870. Restatement of the Law, Conflict of Laws, p. 168,§ 111.

The principal question is as to whether or not the courts of this state may inquire into the facts relative to the residence or domicile of appellant at the time she sought her divorce in the state of Nevada. The constitution of the United States, Art. IV, § 1, provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.

'Where a judgment rendered in one state is challenged in another, a want of jurisdiction over either the person or the subject matter is of course open to inquiry.' Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 342, 85 L.Ed. 278, 132 A.L.R. 1357; Holman v. Tjosevig, 136 Wash. 261, 239 P. 545.

The provisions of the Federal constitution which require that full faith and credit shall be given in each state to the judicial proceedings of every other state do not prevent a collateral attack upon the jurisdiction of the court of a sister state to render the judgment offered in evidence in an action brought in another state. It is settled law that to give courts of a state jurisdiction over a marriage relation between husband and wife, one of the parties at least must have a domicile within the state. This court in speaking of the full faith and credit provisions of the federal constitution, stated in Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 62 P. 862, 885, as follows:

'The decision of the supreme court of the United States upon questions arising under this provision of the constitution and laws of congress, to give it effect, should be controlling upon the supreme court of this state. The supreme court of the United States, in Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897, has...