McElreath v. McElreath

• Decision Date: 01 February 1961
• Docket Number: No. A-7761,A-7761
• Parties: Evelyn Ann McELREATH, Petitioner, v. James Dorsey McELREATH, Respondent.
• Court: Texas Supreme Court

Page 722

345 S.W.2d 722

162 Tex. 190

Evelyn Ann McELREATH, Petitioner, v. James Dorsey McELREATH, Respondent.

No. A-7761.

Supreme Court of Texas.

Feb. 1, 1961.

Rehearing Denied April 19, 1961.

Second Motion for Rehearing Denied May 17, 1961.

Stone, Agerton, Parker & Snakard, Fort Worth, O. P. Newberry, Jr., and James A. McMullen, III, Fort Worth, of above firm, for petitioner.

Fannin & Fannin, Fort Worth, for respondent.

NORVELL, Justice.

This is a suit to enforce an Oklahoma equitable decree ordering James Dorsey McElreath to convey lands in Texas to Evelyn Ann McElreath. Both courts below refused the relief prayed for. 331 S.W.2d 375.

The decree sought to be enforced was entered in a divorce suit between the parties both of whom were residents of Oklahoma and Oklahoma was their matrimonial domicile. This is not a case wherein one of the parties moved form Texas to Oklahoma for the purpose of establishing a residence for divorce purposes. Neither is this a case wherein either party because of residence in Texas had acquired property rights under and by virtue of the marital laws of this State. We are not called upon to pass upon the hypothetical rights of hypothetical persons in the situations mentioned. It appears without dispute that the order is valid and enforceable in Oklahoma and has been affirmed by the court of last resort in that State. See, McElreath v. McElreath, Okl., 317 P.2d 225. However, after the decree had been entened, but before the Oklahoma court could enforce its order, McElreath crossed the Red River and now asserts sanctuary in Texas.

Insofar as marital property is concerned, the laws of Oklahoma are different from those of Texas. However, upon the dissolution of a marriage, Oklahoma like Texas seeks to provide equitable distribution of properties and property rights between its residents. Quite obviously one authority must settle these rights if anything approaching fairness and equity is to be secured. Jurisdiction for such purpose rests with the courts of the matrimonial domicile which, in this case, is the State of Oklahoma. A competent court of that state having acted, and presumably having made a proper and equitable adjustment of the property rights of the divorcing parties, it is anomalous to say the least, to assert that the work of that court may be set at naught by the defendant's crossing the state line and coming to Texas. There is no doubt but that had he remained in Oklahoma, the decree could and would have been enforced by contempt proceedings. As a matter of justice, good order and common sense, the Oklahoma decree should be enforced in Texas, unless contrary to some well defined public policy of this State. There is something incongruous and out of keeping with the concept of orderly processes to tolerate a situation wherein solemn court decrees may be flouted by playing hop-skip with state boundaries. This case involves Oklahomans and it is not against the public policy of Texas for Oklahoma to maintain a different system of property ownership for its residents than that provided by Texas for Texans.

Article 4638 of Vernon's Ann.Tex.Stats. is a part of Chapter 4, Title 75 of the Revised Statutes relating to Divorce. It reads as follows:

'The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.'

This article and the chapter of which it is a part apply only to Texas courts pronouncing decrees of divorce in suits involving Texas residents. Our community property system naturally affects our plan of property division upon a marriage dissolution. Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, Tex.Sup., 331 S.W.2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage. We expect other states to recognize our system of marital property ownership, so should we respect their schemes of property ownership and attendant plans for the adjustment of property rights upon the dissolution of a marriage. Texas public policy does not relate to and is not concerned with the settlement by Oklahoma courts of marital property problems which arise between Oklahoma citizens. Article 4638 establishes a policy governing Texas courts in cases involving divorce and property rights based upon the marital laws of this State. It does not purport to establish a public policy relating to land tenure by nonresidents.

The respondent here was a resident of Oklahoma when divorced. He possessed no rights in Texas property under the marital laws of this state. He had no homestead right in and to the property involved, Article 16, § 51, Texas Constitution, Vernon's Ann.St., Article 3833, Vernon's Ann.Tex.Stats., 22 Tex.Jur., Homesteads, §§ 31, 32, or anything similar thereto.

The matter of enforcing the equitable decrees of one state which affect lands in another state has been the subject of much writing, largely occasioned by a few unsatisfactory court decisions. Only a small portion of this legal literature need be noticed. Most of the authorities discuss the problem of the extra-territorial effect of an equitable decree from the standpoint of the full faith and credit clause of the United States Constitution, Article 4, § 1. That doctrine need not be adverted to here. It is similar, but much broader in scope than the doctrine of comity. However persuasive and helpful, the decisions relating to 'Full Faith and Credit' may be, the doctrine itself need not be invoked when the state of the situs as a matter of comity recognizes the rights upon which the decree of a sister state is based and decides that the enforcement of such rights does not violate any principle of public policy of the situs state. It has been asserted that the development of the 'Full Faith and Credit' clause has fallen half a century behind that of the remainder of the federal constitution. John Russell, 'Titles, Effect of Adjudication by Sister States,' 3 Baylor Law Review, 441. However, the problem is essentially one for the Supreme Court of the United States which may compel recognition of a foreign decree despite public policy declarations announced by a state court of the situs. Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039. In this connection, see also, Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279.

Professor Brainerd Currie of the University of Chicago Law School in his paper styled 'Full Faith and Credit to Foreign Land Decrees,' 21 University of Chicago Law Review 620, 1. c. 666 argues for a dichotomy approach to the problem which in effect would make unnecessary a resort to the principles of comity. He asserts that 'either a judgment is rendered without jurisdiction, in which case due process of law would be denied by holding it conclusive; or it is rendered with jurisdiction in which case it is entitled to full faith and credit.' We need not pass upon the validity of this approach but may reserve judgment upon the point until a case arises wherein the enforcement of the decree of the sister state would to some extent at least violate an established public policy of this state. This case may be and is decided upon the principles of comity.

Our differences with the courts below rest primarily upon a divergence of opinions as to the proper construction of the Oklahoma court decree. The trial court and the Court of Civil Appeals treated the decree as being one which directly affected the title to Texas lands. We regard it as being an equitable order operating in personam which orders James Dorsey McElreath to execute a deed conveying land in Texas to Evelyn Ann McElreath. Matson v. Matson, 186 Iowa 607, 173 N.W. 127. As so construed, the Oklahoma decree should be enforced as a matter of comity.

The statute upon which the Oklahoma decree is based reads as follows:

'When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband's real and personal property as the court shall think reasonable, having due regard to the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court may deem just and equitable. * * *' 12 O.S. 1951, § 1278.

James Dorsey McElreath's holdings consisted of real and personal property situated in both Oklahoma and Texas. The Texas property was devised to him by his father, A. R. McElreath. This circumstance is immaterial as the Oklahoma statute above quoted makes no distinction between property acquired by gift, devise or bequest and any other form of separate property. Under the Oklahoma law the court was empowered to allow alimony to the wife 'out of the husband's real and personal property.'

There is a patent difference between two clauses contained in the decree. One provides that:

'It Is Further Ordered, Adjudged and Decreed by the court that the plaintiff have and she is hereby awarded as alimony an undivided one-third interest in and to all real estate, oil properties, mineral rights, leases, royalties, and any other mineral or oil interests owned by the defendant on this date, including the properties set forth and described in 'Exhibit A'...