Newell v. Newell

• Decision Date: 13 January 1956
• Docket Number: No. 8289,8289
• Citation: 293 P.2d 663,77 Idaho 355
• Parties: Gertrude B. NEWELL, Plaintiff-Respondent, v. Robert M. NEWELL, Ddefendant-Appellant.
• Court: Idaho Supreme Court

Page 663

293 P.2d 663

77 Idaho 355

Gertrude B. NEWELL, Plaintiff-Respondent, v. Robert M. NEWELL, Ddefendant-Appellant.

No. 8289.

Supreme Court of Idaho.

Jan. 13, 1956.

Rehearing Denied Feb. 27, 1956.

Carver, McClenahan & Greenfield, Boise, for appellant.

Richards, Haga & Eberle, Boise, for respondent.

SMITH, Justice.

This appeal is designed to test the jurisdiction of the trial court to grant a divorce to respondent, Gertrude B. Newell, and to award her the custody of minor children, in view of an existing interlocutory judgment of divorce granted appellant, Robert M. Newell, by the Superior Court of California, in and for Los Angeles County, and further decree in that action awarding to him the custody of the minor children.

Respondent and appellant were married in the State of California November 1, 1942. Three children were born as the issue of their marriage.

June 10, 1953, respondent accompanied by the children left California and, after visiting relatives in Montana, arrived at McCall, Idaho, about July 10, 1953.

August 17, 1953, appellant commenced an action for divorce against respondent in the Superior Court in and for Los Angeles County, California, Case No. D-11260. August 24, 1953, respondent was served in Idaho, with process issued out of said California court and cause, but she did not appear personally in that action. September 28, 1953, the California Superior Court granted appellant an interlocutory judgment of divorce, with the right to a final decree of divorce after the expiration of one year; set over to him the community property of the parties; awarded to him the custody of the children, and ordered respondent to deliver the children forthwith to him.

August 22, 1953, respondent commenced an action for divorce against appellant in the District Court of the Fourth Judicial District in and for Gooding County, Idaho. Simultaneously with the filing of the complaint, the Idaho court issued its restraining order directed to appellant, which reads:

'It Is Hereby Ordered, That Defendant, Robert M. Newell be and hereby is restrained and enjoined during the pendency of this action and until further order of this Court from molesting Plaintiff, entering her home, or otherwise interfering with the custody and care by Plaintiff of the three children, Robert M. Newell, Christine Lindsey Newell, and William Charles Newell, or from taking said children out of the State of Idaho.'

The restraining order was served on appellant September 14, 1953.

Appellant made a general appearance in the Idaho court and cause, and litigated the same on its merits.

June 22, 1954, the aforesaid California superior court, in Case No. 629775, a special proceeding commenced by respondent for a commission and subpoena to take depositions, entered an order restraining respondent from taking depositions of witnesses for use in her Idaho divorce action, and from proceeding any further in the Idaho action.

While the pleadings are voluminous, as is the evidence, the parties at the time of trial, July 12, 1954, were able to clarify their respective positions and the issues involved.

They stipulated that their three minor children were corporeally in Idaho in the care of respondent, their mother; also that respondent is a fit and proper person to be awarded the custody of the children, if the Idaho court has jurisdiction to make a custody award to her.

Appellant urged lack of jurisdiction of the Idaho court to grant respondent any relief in her divorce action because the California Superior Court in and for Los Angeles County, in the case of Robert M. Newell, plaintiff, v. Gertrude B. Newell, defendant, No. D-11260, entered an interlocutory judgment of divorce in favor of Robert M. Newell [September 28, 1953], and in Case No. 629775, Gertrude B. Newell, plaintiff, v. Robert M. Newell, defendant, entered a restraining order and injunction [June 22, 1954, restraining Gertrude B. Newell from taking depositions for use in her pending Idaho divorce action and from proceeding any further in said action]. Appellant introduced in evidence authenticated copy of said proceedings, subject to respondent's objections to the validity and effect thereof.

Appellant alleged that said California judgment and order are final and conclusive, entitled to full faith and credit, res judicata and not subject to collateral attack in Idaho. He relied upon said proceedings in bar of respondent's divorce action commenced in Idaho.

Respondent asserted that the Idaho court not only was not precluded by the California proceedings, but it had jurisdiction to determine the issues involved in respondent's Idaho divorce action.

Appellant neither pleaded nor proved any California law. Respondent on the other hand proved certain California law in instances hereinafter referred to and was allowed amendment of her pleadings to conform to her proof.

August 31, 1954, the trial court made and entered its findings of fact and conclusions of law. The court by its judgment, made and entered the same date, granted a divorce to respondent from appellant and awarded to her the custody of the children; also ordered appellant to make certain payments to respondent, for child support; for respondent's community share of a certain automobile of which the court obtained jurisdiction in Idaho, and for attorneys fees and costs. The court then further decreed as follows:

'It Is Further Ordered, Adjudged And Decreed that the Court has considered and recognized the interlocutory decree of divorce made and entered in the Superior Court of the State of California in and for the County of Los Angeles, Pasa-D-11260 on or about September 25, 1953, between the parties hereto and that the same be, and hereby is, declared and decreed to be interlocutory, ex parte or default, not final and on substituted service and is not res judicata or entitled to full faith and credit;

'It Is Further Ordered, Adjudged And Decreed that the Court has considered and recognized the restraining order in the special proceeding in said California Court, No. 629775, and the same be, and hereby is, declared and decreed to be not final and to have been issued without jurisdiction, not responsive to or within the special proceeding involved, not res judicata, not entitled to full faith and credit, and is a nullity;'

The determinative issue on appeal, as stated by the parties, is whether the trial court properly exercised jurisdiction in the face of both the existing interlocutory judgment of divorce granted appellant by the California Court, and that court's order restraining respondent from proceeding further in her Idaho divorce action.

The California Interlocutory Judgment

Appellant contends that because of the peculiar California statutory law and construction thereof by the California courts, the interlocutory judgment is in fact final and entitled to full faith and credit. Appellant neither pleaded nor proved such California law and the Idaho trial court found that he had not, and correctly held that the Idaho law controlled. I.C. secs. 9-101, 9-304, 9-307 and 9-308; Moore v. Pooley, 17 Idaho 57, 104 P. 898; Cummings v. Lowe, 52 Idaho 1, 10 P.2d 1059; Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, certiorari denied 299 U.S. 615, 57 S.Ct. 319, 81 L.Ed. 453; Johnson v. Falen, 65 Idaho 542, 149 P.2d 228; Cole v. Cole, 68 Idaho 561, 201 P.2d 98. The rule is succinctly stated in Maloney v. Winston Bros. Co., 18 Idaho 740, 757, 763, 111 P. 1080, 1086, 1088, 47 L.R.A.,N.S., 634, with a wealth of supporting authorities, in the following language:

'We cannot take judicial notice of the laws of a sister state. In the absence of pleading and proof as to what the laws are in a sister state, we must assume that the same law prevails in the foreign state that prevails here.'

Appellant concedes that unless the California interlocutory decree is final it is not entitled to full faith and credit.

A marriage is dissolved in Idaho only by death of one of the parties or by judgment of a court of competent jurisdiction declaring a divorce of the parties. I.C. sec. 32-601. The effect of a judgment decreeing a divorce is to restore the parties to the estate of unmarried persons. I.C. sec. 32-602.

Interlocutory means provisional, only temporary, not final; not a final decision of the whole controversy; made or done during the progress of an action: intermediate order. Black Law Dictionary, 3rd ed.; Webster New International Dictionary, 2d ed.

The divorce laws of Idaho make no provision for an interlocutory judgment of divorce, I.C. Title 32, chs. 6, 7 and 8; nor recognize the right to a divorce from bed and board. Radermacher v. Radermacher, 61 Idaho 261, at page 269, 100 P.2d 955.

No interlocutory judgment or decree is recognized as final or appealable in this state, except an interlocutory judgment in an action for partition of real property. I.C. sec. 13-201.

Under the laws of Idaho, which we must apply herein, the interlocutory judgment is not final. Where a judgment or decree is not final as measured by the laws applicable to it, it is not entitled to full faith and credit. Board of Public Works v. Columbia College, 17 Wall. 521, 21 L.Ed. 687.

The trial court considered the interlocutory divorce judgment in Case No. D-11260, and recognized it for what it was, i. e., as an interlocutory, ex parte, default judgment; then the court examined the finding in that case, that respondent was a resident of California on August 24, 1953, when personally served in Idaho with summons issued out of the California court and cause; also it considered the recital that respondent appeared in said action.

Again, appellant neither pleaded nor proved any California law in support of his assertion that respondent was a domiciliary of California at said time.

The trial court found upon the undisputed evidence that respondent had conformed to Idaho's residence requirement before bringing her divorce action, i. e.,...