Melvin v. Lawrence
| Decision Date | 05 April 1927 |
| Docket Number | No. 37857.,37857. |
| Citation | 203 Iowa 619,213 N.W. 420 |
| Parties | MELVIN v. LAWRENCE ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Marshall County; J. W. Willett, Judge.
Action in equity for the vacation of a divorce decree. Appellee C. W. Lawrence is the administrator of the estate of M. E. Melvin, deceased, formerly the husband of appellant. A decree dismissing the petition was entered in the district court, and the plaintiff appeals. Affirmed.Parrish, Samson & Huston, of Des Moines, for appellant.
F. E. Northup, C. H. E. Boardman, and C. H. Van Law, all of Marshalltown, for appellees.
[1] This is the second appearance of this case in this court. The former appeal was disposed of on a question of pleading. Melvin v. Melvin, 198 Iowa, 1283, 201 N. W. 7. By reason of the death of M. E. Melvin, the husband, only issues affecting property are involved. That issues of this character may be determined after the death of the husband, see Dennis v. Harris, 179 Iowa, 121, 153 N. W. 343.
[2] The petition is based upon subdivision 5, and perhaps 2, section 4091, Code 1897 (section 12787, Code 1924). The claim of appellant is that both she and husband were nonresidents of the state of Iowa and residents of California at the time the divorce action was begun and the issues therein tried and adjudicated, and that she was prevented, by the advice of her attorneys, from defending in said action on the ground that the court was without jurisdiction of either party. The evidence as to the advice given her by her attorneys is in direct conflict, as is also the evidence as to the residence of the parties. The attorneys who represented appellant in the divorce action are made defendants in this proceeding, and they all denied categorically that the question of appellant's residence at any time arose in the divorce action or was the subject of discussion between them. On the other hand, appellant testified that her attorneys advised her that it made no difference whether they were residents of Iowa or not, and that she accepted this advice, relied thereon, and was prevented from setting up the defense of want of jurisdiction.
It appears that M. E. Melvin, the plaintiff in the divorce action, alleged in the petition that he was a resident of Marshall county, Iowa. The answer of the defendant, appellant herein, admitted this allegation of the petition. No question of jurisdiction was therefore raised in the divorce action. The decree in the divorce case is long, but, so far as material, it was as follows: Decree of divorce in favor of plaintiff, who was required to pay all court costs, expenses, attorney's fees, debts, claims, and charges owing by him or against his property; that a receiver be appointed to take charge of the property, pay the debts and charges, and divide the net estate equally between the plaintiff and the defendant; that, to effectuate this provision of the decree, both the plaintiff and the defendant were required to convey their interest in the property to the receiver in trust. Neither party complied with the latter provision of the decree. Attorney's fees were allowed the attorneys on both sides in the sum of $10,000, which were made a charge upon the property of the plaintiff.
The defendant, appellant herein, appealed from the findings of the court and decree in the divorce action, but the appeal was dismissed because of her failure to file an abstract. It is conceded by all parties that appellant and her husband were residents of Marshall county for more than 30 years prior to 1919; that in November of that year, they went to California, where a residence was purchased by the husband; that a portion of their household goods was shipped to that state; that their former residence, No. 5 Grant street, in the city of Marshalltown, was rented, and a portion of their household goods stored in the attic; that on December 31, 1921, appellant returned to Marshalltown where she remained until the latter part of 1922, when she went to California; that M. E. Melvin returned to Marshalltown in March, 1921, where he remained until 1923. Many witnesses testified that the husband frequently said that he had moved to California to make his home; that he was in ill health, which is conceded, and that the climate was well suited to his condition and that he did not intend to return to Iowa. Whether or not he exercised the right of franchise in California is not disclosed. He may have asserted his residence there making his tax return to the assessor. It also appears that he voted in the city of Marshalltown on June 17, 1922, at an election to determine whether certain bonds should be issued by the municipality for the rehabilitation of the...
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