Nowell v. Nowell

• Decision Date: 28 January 1969
• Court: Connecticut Supreme Court
• Parties: Marguerite L. NOWELL v. Ames NOWELL.

Page 889

254 A.2d 889

157 Conn. 470

Marguerite L. NOWELL v. Ames NOWELL.

Supreme Court of Connecticut.

Jan. 28, 1969.

William C. Strong and John J. Sullivan, Greenwich, for appellant (defendant).

Edgar W. Bassick III, Bridgeport, with whom was Dion W. Moore, Bridgeport, for appellee (plaintiff).

Before Chief Justice King and Associate Justices Alcorn, House, Cotter and Thim of the Supreme Court. THIM, Associate Justice.

The plaintiff and the defendant were married in Maryland in April, 1957, and they resided in New York until January, 1960. Thereafter, the parties moved to Darien, Connecticut, where they occupied a house which was purchased in their joint names. They have no children of their marriage, and, in November, 1962, the husband deserted his wife.

The wife commenced an action for divorce in December, 1962, and the court ordered the husband to pay his wife $1650 monthly as alimony pendente lite and to assume financial responsibility for various household expenses. The writ, summons and complaint were personally served upon the husband in Connecticut, and a firm of attorneys entered a general appearance on his behalf. Subsequently, the wife amended her complaint to request a legal separation, support and equitable relief. After the issues were joined, the case was referred to a referee to hear the evidence and to report to the court. The wife's action for legal separation and support was pending before the referee from February, 1964, to December, 1965.

While the wife's action was before the referee, the husband established his residence and domicil in Texas. In March, 1965, he filed a summons and complaint seeking a divorce in the Domestic Relations Court of Dallas County in Texas. On September 7, 1965, the wife was personally served in Connecticut with process in the divorce action which had been instituted by her husband in Texas. Shortly thereafter, the Domestic Relations Court in Texas issued an ex parte injunction temporarily restraining the wife from taking any action in her Connecticut case which might interfere with the husband's divorce action, which was then pending in Texas. On the same day that the wife was served with notice of the Texas antisuit injunction, the Connecticut Superior Court, pursuant to § 52-473 of the General Statutes, issued an ex parte injunction restraining the husband from prosecuting his Texas divorce action pending the disposition of the Connecticut action. A copy of the Connecticut injunction was served upon the husband's Connecticut counsel.

Despite the pendency of her action in Connecticut, the wife decided to appear and contest her husband's divorce action in Texas. On September 24, 1965, she filed a sworn motion in the Domestic Relations Court in Texas challenging the jurisdiction of that court on the grounds that neither party was a resident of Texas, that Texas had no jurisdiction of the subject matter, that there was a prior action for a legal separation and support pending in Connecticut and that her husband had been enjoined by the Connecticut court from proceeding with the Texas action. The Texas court overruled the wife's motion challenging the court's jurisdiction, and the divorce case proceeded to trial before a court and a jury. The jury returned a verdict for the husband and judgment was rendered on December 22, 1965. The wife was adjudged guilty of 'excesses, cruel treatment or outrages' which rendered the further living together of the parties insupportable. The Texas judgment dissolved the marriage and restored the parties to the status of single persons. A prenuptial agreement which had been executed by the parties was incorporated into the judgment, and unsettled issues relating to that agreement were resolved by the judgment itself. The judgment of divorce further ordered the husband to pay his wife's counsel fees in the sum of $6000 and recited that any relief not expressly granted to either of the parties was expressly denied.

The wife appealed from the judgment to the Texas Court of Civil Appeals (5th District), which affirmed the judgment of the lower court in October, 1966. Nowell v. Nowell, 408 S.W.2d 550 (Tex.Civ.App.). Thereafter, the wife filed with the Supreme Court of Texas an application for a writ of error to review the affirmance by the court of appeals. This application was denied in February, 1967. In May, 1967, the wife filed with the United States Supreme Court a petition for a writ of certiorari to reverse the decision of the Texas Court of Civil Appeals. The petition was denied on October 9, 1967. Nowell v. Nowell, 389 U.S. 847, 88 S.Ct. 53, 19 L.Ed.2d 116.

Shortly after the entry of the Texas judgment of divorce, the husband, hereinafter referred to as the defendant, submitted to the Connecticut Superior Court on January 11, 1966, an exemplified copy of the Texas judgment. At that time, the defendant moved that the Connecticut court recognize the Texas judgment and dismiss the wife's action for separation and support on the ground that the judgment was res judicata of the issues and a bar to her action. The defendant has repeatedly made this claim at subsequent stages in the proceedings.

The trial court refused to recognize the Texas judgment of divorce and permitted the wife, hereinafter referred to as the plaintiff, to proceed with the prosecution of her action. On April 22, 1966, the court accepted the referee's report and rendered judgment in favor of the plaintiff, granting her a legal separation, permanent support of $1650 monthly and counsel fees of $24,000. The court also ordered the house in Darien to be sold and the proceeds divided equally between the parties or that the defendant pay the plaintiff her equity in an undivided one-half interest in the property. Moreover, the defendant was ordered to pay the taxes, mortgage interest, insurance and major repairs until the house was sold.

The defendant has taken the present appeal from this judgment, and the trial court ordered him to pay the plaintiff temporary support of $1650 monthly pending the appeal and $6,000 for her counsel fees to defend the appeal.

I

The defendant claims that the trial court committed error by rendering a judgment for legal separation and support on the ground that it was rendered in violation of the full faith and credit clause of the United States constitution. We do not agree with this claim for reasons hereinafter stated.

The full faith and credit clause of the United States constitution and the statute which implements it (28 U.S.C. § 1738) require that the judgments of the courts of each state shall be given the same faith, credit and effect in sister states as they have by law, custom or usage in the courts of the state rendering them. Aldrich v. Aldrich, 378 U.S. 540, 543, 84 S.Ct. 1687, 12 L.Ed.2d 1020; Johnson v. Muelberger, 340 U.S. 581, 587, 71 S.Ct. 474, 95 L.Ed. 552; Coe v. Coe, 334 U.S. 378, 384, 68 S.Ct. 1094, 92 L.Ed. 1451; New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 91 L.Ed. 1133; Milwaukee County v. M. E. White Co., 296 U.S. 268, 273, 56 S.Ct. 229, 80 L.Ed. 220; Koster v. Koster, 137 Conn. 707, 710, 81 A.2d 355; Freund v. Burns, 131 Conn. 380, 383, 40 A.2d 754.

The plaintiff, accompanied by her attorney, appeared in the Texas court, objected to the court's jurisdiction and contested the defendant's action for a divorce on the merits. Under Texas law, once such a judgment has become final it would conclude all questions relating to the divorce and to the court's jurisdiction, and the plaintiff could not collaterally attack the judgment. Davis v. First National Bank of Waco, 139 Tex. 36, 41, 161 S.W.2d 467, 144 A.L.R. 1; Pavlas v. Pavlas, 428 S.W.2d 880, 881 (Tex.Civ.App.); Goldberg v. Goldberg, 425 S.W.2d 830, 831 (Tex.Civ.App.); 34 Tex.Jur.2d, Judgments, § 450.

The existence of the Connecticut antisuit injunction forbidding the defendant from prosecuting his Texas divorce did not relieve the Connecticut court of the duty to accord full faith and credit to the Texas judgment in January, 1966. This injunction was directed to the person of the defendant, and it had no effect on the jurisdiction of the Texas court. Cunningham v. Cunningham, 25 Conn.Sup. 221, 224 200 A.2d 734; 24 Am.Jur.2d, Divorce and Separation, § 1010; 43 C.J.S. Injunctions § 51. Connecticut must recognize the Texas judgment under the mandate of full faith and credit despite the fact that it was obtained in defiance of a Connecticut antisuit injunction. Rapoport v. Rapoport, 273 F.Supp. 482 (D.Nev.); Zieper v. Zieper, 14 N.J. 551, 103 A.2d 366; Commonwealth ex rel. Messing v. Messing, 195 Pa.Super. 334, 335, 171 A.2d 893; Dominick v. Dominick, 26 Misc.2d 344, 347, 205 N.Y.S.2d 503; Kleinschmidt v. Kleinschmidt, 343 Ill.App. 539, 99 N.E.2d 623.

Since we have decided that the Connecticut court should have recognized the Texas judgment of divorce, the question arises what was the effect which should have been given to that judgment. The Texas judgment of divorce was appealed by the plaintiff to the Texas Court of Civil Appeals, the Texas Supreme Court and the United States Supreme Court. Connecticut must look to the Texas law to determine when a Texas judgment which has been appealed is considered final and entitled to res judicata effect and when it can be pleaded as a bar to another action involving the same parties and subject matter. Bank of North America v. Wheeler, 28 Conn. 433, 440, 441.

Our examination of the Texas law reveals that a Texas judgment cannot be pleaded defensively as a bar to another action involving the same parties and subject matter so long as there is an appeal pending. A Texas judgment which is pending appeal lacks the finality of character which is necessary to constitute a bar to another suit and have res judicata effect. Such a judgment cannot be introduced into evidence in support of a right or of a defense declared by it. A Texas judgment which is pending appeal is not...