McCormick v. McCormick

• Citation: 82 Kan. 31,107 P. 546
• Decision Date: 12 March 1910
• Docket Number: 16,381
• Parties: EMMA BLANCHE MCCORMICK, Appellee, v. JOSEPH L. MCCORMICK, Appellant
• Court: United States State Supreme Court of Kansas

107 P. 546

82 Kan. 31

EMMA BLANCHE MCCORMICK, Appellee, v. JOSEPH L. MCCORMICK, Appellant

No. 16,381

Supreme Court of Kansas

March 12, 1910

Decided January, 1910.

Appeal from Riley district court; SAM KIMBLE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

DIVORCE -- Foreign Judgment -- Publication Service -- Collateral Attack -- Fraud -- Alimony -- Res Judicata -- Residence -- Jurisdiction. In December, 1907, the defendant obtained a divorce. from his wife, the plaintiff, in the circuit court of Jackson county, Missouri, according to the laws of that state. The wife was residing at the time in Shawnee county Kansas, and was served by publication only. She knew of the pendency of the action, but made no appearance. The decree made no reference to alimony or property rights. In July, 1908, the plaintiff brought an action for alimony in Riley county, Kansas, where the defendant had real estate which was sequestered to pay the judgment sought. The defendant pleaded the Missouri decree and offered it in evidence at the trial. Held: (1) The present action was properly instituted in Riley county. (2) The Missouri court had jurisdiction to hear the cause before it even if the allegations of the petition were false, and to render the decree even if moved to do so by false testimony. (3) The Missouri decree was not open to collateral impeachment on the ground of fraud. (4) By chapter 184 of the Laws of 1907, which took effect on March 21, 1907, the legislature made the recognition and enforcement of foreign divorce decrees based on publication service obligatory in this state, and placed such decrees on the same basis as judgments of the courts of this state with respect to all persons, and the status of all persons, affected. (5) Giving the decree of the Missouri court the force it would have if rendered by a court of this state, it was as effectual as if it had been founded on personal service. It dissolved the marriage, and the plaintiff was no longer the defendant's wife. The cause was open for the consideration of the subject of alimony. No application for alimony having been presented and no award having been made, the judgment is a bar to the recovery of alimony now, although the matter was not specifically referred to in the decree. The facts embraced in the issues presented by the petition on which the decree rests are res judicata. The district court of Riley county had no authority to enforce the matrimonial obligation upon which the right to alimony depends, and the plaintiff no longer has any of the rights which a wife possesses respecting her husband's property. (6) The case of Roe v. Roe, 52 Kan. 724, 35 P. 808, approved and followed. The case of Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779, distinguished.

Charles Blood Smith, Robert J. Brock, and Samuel Barnum, for the appellant.

John E. Hessin, Philip C. Wilson, and William F. Schoch, for the appellee.

OPINION

BURCH, J.:

The action in the district court was brought by Emma Blanche McCormick to obtain alimony. Judgment was rendered in her favor and the defendant, Joseph L. McCormick, appeals.

The petition was filed on July 23, 1908, and shows the parties were married in 1889 in Riley county, Kansas, where they continued to reside until 1905. About that time they removed to Kansas City, Mo. In September, 1907, the plaintiff removed to Topeka, in Shawnee county, Kansas, where she resided when the suit was begun. The defendant owned land in Riley county which the plaintiff sought to appropriate, but he continued to reside in Missouri. The causes of action stated were extreme cruelty, gross neglect of duty, abandonment and adultery, the facts being set forth in detail. The plaintiff justified her separation from the defendant and her removal to Kansas on the ground of his misconduct. The prayer was for alimony in the sum of $ 15,000, for a receiver for the land in Riley county, for a division of property, and for other relief. A receiver was appointed who took possession of the land, and the defendant was served by publication.

The defendant answered, admitting the marriage and the residence of the parties as stated, but he challenged the venue and denied the charges of misconduct contained in the petition. As a specific defense it was alleged that on December 10, 1907, the defendant was divorced from the plaintiff by a decree of the circuit court of Jackson county, Missouri, a court having jurisdiction of the subject matter and of the parties, which decree remained unreversed and in full force and effect, and consequently that the plaintiff was not the defendant's wife. As a further defense, and as a bar to the plaintiff's cause of action, the defendant pleaded in full the proceedings and judgment in the divorce suit in Missouri, and the statutes of that state governing such cases, expressly invoking the benefit and protection of section 1 of article 4 of the constitution of the United States, which provides that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. The statutes of Missouri set out in the answer prescribe the causes for which a divorce may be obtained, vest jurisdiction over the subject of divorce in the circuit court of the county where the defendant resides, regulate the pleadings, process and proceedings, and among such regulations provide for service by publication on nonresident defendants. The duly authenticated record of the proceedings and judgment exhibited in the answer show full compliance with these statutes, including valid service by publication. The petition stated that Joseph L. McCormick was, at the time the petition was filed, and for more than one whole year prior thereto had been, an actual resident and citizen of Jackson county, in the state of Missouri, and had continuously resided during all of that time in that county and state. A cause of action for divorce on the statutory ground of indignities rendering his condition intolerable was stated, and among other allegations appeared the following:

"Plaintiff further alleges that on or about the 26th day of September, 1907, the said defendant, without the knowledge or consent of this plaintiff, packed up the household goods belonging to this plaintiff and shipped them to some point unknown to this plaintiff, and took with her a horse and carriage belonging to this plaintiff, and took the children of plaintiff and left for some place unknown to this plaintiff, and that defendant has absconded and absented herself from her usual place of abode in this state so that the ordinary process of law can not be served upon her in the state of Missouri."

The decree which was rendered reads as follows:

"Now, on this day comes plaintiff in person and by attorney, and defendant, although lawfully summoned by publication, proof of which is made and filed herein, comes not, but makes default.

"This cause now coming on for trial is submitted to the court upon the pleadings, and after having heard the evidence the court finds that the allegations in plaintiff's petition are true; that plaintiff is the injured and innocent party and entitled to the relief prayed.

"Wherefore it is adjudged and decreed by the court that the bonds of matrimony heretofore contracted between plaintiff and defendant be and the same are hereby dissolved and for naught held, and plaintiff forever freed from the obligations thereof.

"It is further ordered and adjudged by the court that the costs herein be paid by, and that execution therefor issue against, the defendant."

The reply to the defendant's answer consisted simply of a general denial.

On the trial the plaintiff produced sufficient proof to sustain the causes of action stated in the petition, and to show that her separation from the defendant was warranted because of his wrongful conduct. The defendant offered to show that his attorneys in the Missouri suit duly advised attorneys representing the plaintiff in her difficulties with her husband of the pendency of that action, sending them a copy of the publication notice containing the date she was called upon to answer. The defendant further offered in evidence a letter of the plaintiff's attorneys acknowledging receipt of an acceptance of service, sent them by defendant's attorneys for signature, and declining to sign the same. This evidence was excluded, and the defendant duly excepted. The plaintiff admitted she left Kansas City, Mo., without the defendant's knowledge and without telling him where she was going, and admitted she did not notify him, after she arrived in Topeka, where she was. She also admitted she learned of the suit pending against her in Jackson county, Missouri, in October or November, 1907. The decree in the Missouri case was read in evidence over the plaintiff's objection.

The court found for the plaintiff and granted her alimony in the sum of $ 8000, together with attorney fees in the sum of $ 500. One ground of the decision was that under the rule announced in Haddock v. Haddock, 201 U.S. 562, 50 L.Ed. 867, 26 S.Ct. 525, the effect of a foreign decree of divorce is to be determined by the facts of each case. The court also said:

"That where the jurisdiction of a sister state has been invoked and made operative by a direct or indirect fraud without the existence and operation of which the jurisdiction would not have moved, the result of the exercise of that jurisdiction is void, and that upon the proposition that the integrity of the courts in the administration of justice demands that any moving of the court procured by means of fraud will be abjured promptly by that court, and that as other courts act upon the presumption that the courts will always...