Oberstein v. Oberstein

• Decision Date: 10 April 1950
• Docket Number: No. 4-9137,4-9137
• Citation: 228 S.W.2d 615,217 Ark. 80
• Parties: OBERSTEIN v. OBERSTEIN.
• Court: Arkansas Supreme Court

Page 615

228 S.W.2d 615

217 Ark. 80

OBERSTEIN v. OBERSTEIN.

No. 4-9137.

Supreme Court of Arkansas.

April 10, 1950.

William Weisman, New York City, Cooper Land, Hot Springs, Rose, Dobyns, Meek & House, Little Rock, for appellant.

Richard M. Ryan, Hot Springs, Howard F. Corcoran, New York City, Owens, Ehrman & McHaney, Little Rock, for appellee.

McFADDIN, Justice.

The facts in this case present a sordid story, involving not only the litigants, but also two attorneys, W. R. Berkson, of New York City, and Morris Hecht, of Hot Springs, Arkansas.

Mr. and Mrs. Oberstein lived in a Fifth Avenue apartment in New York. They had been married for many years, and had a daughter, Patricia, 17 years of age, when, in January 1947, Mr. Oberstein announced to his wife that he wanted a divorce. He had become infatuated with another woman. When Mrs. Oberstein refused to consider a divorce, Mr. Oberstein moved from the apartment, ceased paying the $150 weekly allowance to his wife, and used the daughter, Patricia, to convey his threats to the effect that if Mrs. Oberstein did not obtain a divorce, he would give her no money.

At first Mrs. Oberstein consulted a New York attorney of her own choosing and was well advised that she could force Mr. Oberstein to contribute to her support. But she discontinued the services of her attorney and went to W. R. Berkson, her husband's attorney, ¹ and made a 'trade' with that attorney and her husband that she would obtain a divorce, in return for a contract of financial support. On July 22, 1947 Berkson gave Mrs. Oberstein a memorandum:

'Bus leaves 42nd Street Air Terminal Wednesday, July 23, 1947, 7 A.M. our time, for Newark. Plane leaves Newark 6:50 A.M. Eastern Standard Time (7:50 A.M. daylight saving time), flight 207 American Airlines. Arrives Little Rock, Arkansas 12:40 noon.

'Upon arrival in Little Rock, you are to make arrangements at the field for a flight to Hot Springs, and are to telephone Mr. Morris Hecht, the attorney, whose offices are in the Arkansas Trust Building, Hot Springs, Arkansas, and whose telephone number is Hot Springs 2657. He will make all arrangements for you there, and will call for you on your arrival at Hot Springs.

'You are to return on Thursday, July 24th, leaving from Little Rock, Arkansas at 5:30 P.M., flight 210 American Airlines. You are to make arrangements to arrive in Little Rock before 5:00 P.M. Mr. Hecht undoubtedly will assist you in making such arrangements.

'W. R. B.'

At the same time he gave Mrs. Oberstein this memorandum, Berkson delivered to her the air line tickets and two of his own personal checks payable to Morris Hecht, one for $75 and the other for $90. Also Berkson gave Mrs. Oberstein a letter to Hecht which introduced Mrs. Oberstein, discussed her grounds for divorce, and told Hecht what Berkson desired the decree to contain. There was this significant sentence: 'I feel confident that you will handle this matter to the satisfaction of all parties concerned.' ²

In keeping with the Berkson memorandum, Mrs. Oberstein flew to Little Rock on July 23, 1947 and proceeded to Hot Springs, where she contacted Morris Hecht. He took her to the Arlington Hotel, and she gave him the Berkson letter and the two checks. He returned to her room in an hour and she signed a paper which now appears as a deposition. Hecht advised her that the divorce decree would be granted on October 28, 1947. She had dinner with Mr. and Mrs. Hecht, spent the night at the Arlington Hotel, and returned to New York by plane the next day. That was the sole extent of her stay in Arkansas and her only visit to this State until some time in 1949, subsequently to be mentioned.

When Mrs. Oberstein returned to New York, she reported her Arkansas trip to Mr. Oberstein, remained in New York a short time, and at Oberstein's expense took a cruise to California via the Panama Canal. When she returned to New York, she went to Berkson's office with her sister so that the latter might furnish a deposition to be used in the pending Arkansas divorce case. Oberstein executed a waiver of service and an entry of appearance, in which appears this language: '* * * And the defendant, Eli E. Oberstein, further agrees to pay to the plaintiff, Mary M. Oberstein, as and for her support, and the support and maintenance of the infant issue of the marriage, Patricia Louise Oberstein, as follows: $150 per week until such time as the plaintiff shall remarry or die, whichever shall occur the sooner. * * *'

The instrument was acknowledged in New York City by 'William R. Berkson' as notary public.

Morris Hecht, the Hot Springs attorney, signed his name to a complaint, filed September 24, 1947 in the Garland Chancery Court, alleging Mrs. Oberstein to be a resident of Arkansas, seeking a divorce from Mr. Oberstein on the ground of indignities, and praying for support and maintenance of $150 per week. At the time he did this, Hecht, of course, knew that Mrs. Oberstein was not a resident of Arkansas. Also, Hecht obtained and filed in the divorce suit the purported deposition of Anna Cook, 194 Ramble Street, Hot Springs, Arkansas, to the effect that Mrs. Oberstein had lived in the home of Anna Cook continuously from July 23, 1947 to October 22, 1947. Hecht's wife, Kathryn Hecht, as notary public, certified that Mrs. Oberstein appeared before said notary in Hot Springs, Arkansas, on October 22, 1947, and gave her deposition; whereas in fact Mrs. Oberstein had been in Hot Springs only the one time in July 1947 when there was no suit pending Morris Hecht also obtained a decree of divorce, on the ground of indignities, for Mrs. Oberstein against Mr. Oberstein on October 28, 1947 in the Garland Chancery Court on what Morris Hecht knew was false evidence of residence.

On October 25, 1947 Mr. and Mrs. Oberstein signed, in New York City, a property settlement agreement, which provided that if the divorce decree should be granted, then Mr. Oberstein, in addition to the $150 weekly support money, would pay Mrs. Oberstein $25,000 in cash, pay rent on the apartment, surrender all the furniture in it, and also give Mrs. Oberstein an automobile. ³ Both parties acknowledge the instrument before William R. Berkson, notary public. On November 5, 1947 Mrs. Oberstein signed a receipt to Berkson reading as follows: 'Received from William R. Berkson the respective sums of $25,000 and $850, the former representing the cash payment of Eli E. Oberstein to me on securing the final decree of divorce; the latter household allowances and arrears owed me by Eli E. Oberstein. This acknowledged receipt of all other papers referred to in the stipulation in the suit for divorce. * * *'

Oberstein married 'the other woman' a few days after October 28, 1947. Mrs. Oberstein continued to receive the $150 weekly payments; but in May 1948 she filed proceedings in New York to have the Arkansas divorce declared void. Then, on December 20, 1948, she filed, in the original divorce suit in the Garland Chancery Court, a petition to have that Court vacate the divorce decree of October 28, 1947. As grounds for vacating the divorce decree, she alleged that it was void for want of jurisdiction of the Court over the parties, and she sought to excuse herself from her part of the fraud and collusion by the claim that she was under 'duress' of her husband when she came to Arkansas in July 1947; and she claimed that this duress was continuous until November 6, 1947. Mr. Oberstein resisted the motion to vacate. Mrs. Oberstein testified when the motion to vacate was heard by the Garland Chancery Court; and on September 6, 1949 a decree was rendered vacating the divorce decree of October 28, 1947. Mr. Oberstein has appealed.

It is only fair to say that none of the present attorneys came into this case until shortly before the filing of the motion to vacate on December 20, 1948; and they as well as the Chancellor are in no wise involved or implicated in the collusion and fraud of the parties, or the unethical conduct of William R. Berkson and Morris Hecht.

So much for the recitation of facts. Now for the applicable rules of law and our holdings:

I. The Divorce Decree is Void. It is crystal clear that the divorce decree rendered in this case by the Garland Chancery Court in October 28, 1947 lacked the essential requirement of jurisdiction. In Cassen v. Cassen, 211 Ark. 582, 201 S.W.2d 585, 586, in speaking of the absolute requirement of 'jurisdiction in divorce cases', we said: 'Before a person can become a resident of this state so as to have his marital status determined by the courts of this state, he must, in truth and in fact, be a bona fide resident of the state. * * * A divorce decree in this state, to fulfill all the requirements for full faith and credit under the United States Constitution, art. 4, § 1, can determine status only when there is a bona fide residence in this state. We quote from Section 111 of the American Law Institute's Restatement of the Law on Conflict of Laws: 'A state cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state.''

In the case at bar neither spouse was ever domiciled in this State, so it is clear that the divorce decree rendered by the Garland Chancery Court in this cause on October 28, 1947 was a decree rendered without jurisdiction, and was and is void, and was and is not entitled to full faith and credit under Article IV, Sec. I of the United States Constitution. What we should do about vacating the decree is yet to be considered.

II. Duress. The next question is Mrs. Oberstein's claim that she was under the duress of her husband in coming to Arkansas and obtaining the divorce. She offers this to excuse her conduct. The elements of duress, sufficient to invalidate a contract, are: (a) coercion; (b) loss of volition; and (c) the resultant contract. 17 C.J.S., Contracts, § 168, p. 526.

To sustain her claim of duress it was incumbent on...