Parker v. Parker

• Decision Date: 15 April 1915
• Docket Number: 2654.
• Citation: 222 F. 186
• Parties: PARKER et al. v. PARKER.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F. 186

PARKER et al. v. PARKER.

No. 2654.

United States Court of Appeals, Fifth Circuit.

April 15, 1915

Rehearing Denied May 28, 1915. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Theodore Mack and Mike E. Smith, both of Ft. Worth, Tex., and J Shirley Cook, of Vernon, Tex., for appellants.

S. B. Cantey, of Ft. Worth, Tex., Francis Marion Etheridge, Joseph Manson McCormick, and Henri Louie Bromberg, all of Dallas, Tex., for appellee.

Before PARDEE and WALKER, Circuit Judges, and SHEPPARD, District judge.

SHEPPARD District Judge (after stating the facts as above).

Whether there was jurisdiction of the defendant acquired by the statutory proceedings in Ray county, Mo., as would affect a binding operative decree against the defendant in that state, we prefer to express no opinion, as it is unnecessary in view of the conclusion reached on the findings of fact by the chancellor. In the view we take of the case, the paramount question submitted for determination by this court is: Was there jurisdiction of the matrimonial res, or the subject-matter of the controversy, as would compel recognition of the decree in the state of Texas under the full faith and credit clause of the Constitution and laws of the United States?

Assuming, but not deciding, jurisdiction in the Missouri court on the statutory proceedings for divorce instituted by Parker in Ray county, Mo., whether or not the decree is entitled to full faith and credit beyond the territorial limits of the state of Missouri depends, it would seem, upon more than mere conformity with the requirements of the statutes of that state for substituted service. Of course, if an essential requisite of the statute for valid service was omitted in the jurisdictional proceedings, it is generally held that the decree based thereon is not merely voidable, but void, and subject to collateral attack. In divorce proceedings, particularly where the state is a silent, but interested, party, constructive service is viewed strictly, and where there is no appearance every essential requisite of the statute for such service must affirmatively appear. Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959; Kunzi v. Hickman, 243 Mo. 103, 147 S.W. 1002; Shrader v. Shrader, 36 Fla. 502, 18 So. 672.

It is not incumbent upon this court, however, in face of the findings of fact by the court below, supported as we believe by the evidence, to determine the validity of the decree rendered in the state of Missouri. The recognition of the decree in such cases beyond the limits of the state where granted, it is well settled, depends ultimately upon the jurisdiction of the subject-matter of the particular action. Extraterritorial recognition of divorce decrees, predicated on statutory proceedings for substituted service, depends, as we shall see, on whether or not there was jurisdiction over the matrimonial domicile in the state where granted.

Adverting to the record for the facts to determine this ground of jurisdiction, we have the District Court's findings on a conflict in the testimony, supported as we think by a preponderance of the evidence that the complainant, Barbara Parker, went to California from Illinois November 8, 1867, and had never been out of the state of her adoption; that she was lawfully married to Parker in said state on June 28, 1873, from which time they lived together until December 12, 1877, when he deserted complainant, leaving her pregnant and destitute at the home of her impoverished mother; that the father never afterward saw the mother or child, and never communicated with them or contributed anything to the support of either. Ascertaining, moreover, from the evidence the motive and reasons for his desertion of the complainant, the chancellor summarizes the proof fairly borne out by the record:

'That Walter M. Parker did not take the matrimonial domicile of himself and complainant to the state of Missouri, and the complainant was never actually or constructively within the territorial limits of that state.'

It seems well settled by federal authority that, when the wife is deserted by the husband without justification, the matrimonial domicile stays with her, the innocent party, and that she may in consequence acquire a new domicile, which may become, indeed, the matrimonial domicile, as was held in Barber v. Barber, 21 How. 582, 16 L.Ed. 226, and Haddock v. Haddock, 201 U.S. 570, text, 26 Sup.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1. The Court of Civil Appeals of Texas, in the case of Montmorency v. Montmorency, 139 S.W. 1171, text, referring to the Haddock Case, says: 'The decision impresses us with the belief that the reasoning of that decision gives the court of the domicile of the innocent party jurisdiction to render a judgment binding everywhere, and deprives the court of the domicile of the guilty party of jurisdiction to render a judgment binding save in the state where rendered. ' Cheever v. Wilson, 9 Wall. 108, 19 L.Ed. 604; Atherton v. Atherton, 181 U.S. 155, 21 Sup.Ct. 544, 45 L.Ed. 794.

The record of judgment in another state may be collaterally attacked, if the facts necessary to give the court jurisdiction may be successfully contradicted. If the facts supporting jurisdiction did not actually exist, the record of the judgment may be impeached. Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897; Morgan v. Morgan, 1 Tex.Civ.App. 315, 21 S.W. 154; Stuart v. Cole, 42 Tex.Civ.App. 478, 92 S.W. 1040. This is true, notwithstanding the decree may be valid and conclusive in the state where granted. Parker, having acquired a bona fide domicile in Missouri, would be entitled to have his status adjudicated in that state, as held in Maynard v. Hill, 125 U.S. 190, 8 Sup.Ct. 723, 31 L.Ed. 654:

'All governments possess inherent power over the marriage relation, its formation, and its dissolution as regards their own citizens; and where a court or a Legislature of a state has acted conformably with its laws concerning the marriage tie as to a citizen of that state, its action is binding in that state as to that citizen, and its validity under the due process clause of the Constitution may not be therein questioned.'

And in Haddock v. Haddock, supra:

'As a corollary to the power of the state, irrespective of any extraterritorial effect, any other sovereign may, under the principles of comity, give to such a decree the efficacy which its own conception of duty and public policy may justify. ' Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

The obligatory recognition of such a decree beyond the limits of the state depends, however, upon whether there was jurisdiction of the matrimonial relation of the parties. That relation may not follow the domicile of the offending husband. If the adopted residence is intended to perpetrate a fraud on the innocent wife, or if the wife is without fault, and was deserted, the matrimonial domicile remains in the state of her residence. The law is well settled on this subject in Barber v. Barber, supra, that:

'Where the domicile of matrimony is in a particular state, and the husband, abandoning the wife, wrongfully goes into another state in order to avoid his marital obligation, such other state does not become a new domicile of matrimony, nor the actual or constructive domicile of the wife. That (the matrimonial domicile and that of the wife) continues in the original state until she actually acquires a new one.'

In the Atherton Case, supra, it was held by the Supreme Court that a decree obtained in Kentucky against a wife resident in New York with the consent of her husband was entitled to full faith and credit in the jurisdiction of New York, because from the facts of that case it was ascertained that the matrimonial domicile was in Kentucky, notwithstanding the residence of the wife in Clinton, N.Y. In that case there was constructive service on the wife, and it was there held that, where the statute providing for substituted service was complied with in the state of the matrimonial domicile, jurisdiction would be complete. The distinguishing facts of that case from the instant case are that in the Atherton Case the Kentucky court had jurisdiction of the matrimonial domicile as well as jurisdiction of the person of the defendant, and it would appear from the reasoning in that case that both are necessary to invest the decree with the character of compulsory extraterritorial recognition under the full faith and credit clause of the federal Constitution.

In the case of Haddock v. Haddock, 201 U.S. 572, 26 Sup.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, which we think is decisive of the question here presented, the husband abandoned the wife in New York and went to Connecticut where he acquired a domicile in good faith; the facts made out a case of desertion. The husband brought suit for divorce in Connecticut and perfected constructive service in accordance with the Connecticut statute; a final decree was entered on substituted service alone. The court held that the decree so obtained probably could be enforced within the jurisdiction of Connecticut, and that the state of New York could give it such effect as its public policy required, but that the decree based upon constructive service, and without personal jurisdiction over the respondent, was not such a decree as was entitled to obligatory enforcement in other states in virtue of the full faith and credit clause of the Constitution of the United States.

Coming next to the force and effect of the decree in Texas: The public policy of that state, settled by decisions of its ultimate courts, would, it seems, recognize only such decrees granted in other states where jurisdiction was predicated on the matrimonial res, as was held in the well-considered opinion of Montmorency v....