Peterson v. Peterson

• Decision Date: 27 May 1922
• Parties: ANNA M. PETERSON, Respondent, v. ALBERT C. PETERSON and JOHN VENABLE, Appellants
• Court: Idaho Supreme Court

207 P. 425

35 Idaho 470

ANNA M. PETERSON, Respondent, v. ALBERT C. PETERSON and JOHN VENABLE, Appellants

Supreme Court of Idaho

May 27, 1922

COMMUNITY PROPERTY-CHARACTER OF WIFE'S INTEREST-EFFECT OF DISSOLUTION OF MARITAL COMMUNITY BY DIVORCE OBTAINED IN FOREIGN JURISDICTION.

1. The interest of a wife in the community property is a vested interest, and as to degree, quality, nature and extent, is the same as that of her husband.

2. The dissolution of a marital community caused by the wife obtaining a divorce in a foreign jurisdiction cannot divest her of her interest in the community property where the validity of such divorce proceedings is not challenged by the husband in the proceedings afterward brought by her to establish her interest in such community property.

3. Where either husband or wife abandons the other and goes to a foreign jurisdiction and establishes a residence therein, and obtains a divorce from the other, by constructive service the courts of this state are not bound to recognize the validity of such divorce proceedings under the "full faith and credit" clause of the federal constitution.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to quiet title. Judgment for plaintiff and defendants appeal. Affirmed.

Affirmed. Costs awarded to respondent.

P. E Cavaney and Jas. S. Bogart, for Appellants.

An action for divorce is an action in rem and respondent having procured her divorce in Washington, said court could not make a binding decree in personam against the appellant in Idaho. Especially is this the rule affecting the property rights of the parties. (Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Proctor v. Proctor, 215 Ill. 275, 106 Am. St. 168, 2 Ann. Cas. 819, 74 N.E. 145, 69 L. R. A. 673; Haddock v. Haddock, 201 U.S. 562, 5 Ann. Cas. 1, 26 S.Ct. 525, 50 L.Ed. 867; 2 Black on Judgments, sec. 933; 19 C. J. 22.)

The appellant never having been within the jurisdiction of the state where the divorce was granted, nor having entered his appearance, a decree in Washington could not be enforced against the appellant in Idaho so far as the property rights were concerned. (McVicker v. Beedy, 31 Me. 314, 50 Am. Dec. 666; Phelps v. Brewer, 9 Cush, (Mass.) 390, 57 Am. Dec. 56; Grant v. Swank, 74 W.Va. 93, Ann. Cas. 1917C, 286, 81 S.E. 967, L. R. A. 1915B, 881; Barrett v. Failing, 111 U.S. 523, 4 S.Ct. 598, 28 L.Ed. 505; Keenan v. Keenan, 40 Nev. 351, 164 P. 351; Mott v. Mott, 82 Cal. 413, 22 P. 1140; Barnett v. Barnett, 9 N.M. 205, 50 P. 337.)

The dissolution of the marriage and a division of the property of the spouses were so inseparably connected as a single cause of action that a judgment on a part of the cause is necessarily res judicata as to the cause. (Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A. 60.)

Where a wife abandons her husband and the homestead and contributes nothing toward the success of the homestead, she is not in a position to claim one-half of the gains made by the husband. (Wheat v. Owens, 15 Tex. 241, 65 Am. Dec. 164.)

G. W. Lamson, for Respondent.

"The weight of authority is that the former spouses hold the property as tenants in common, subject to the payment of the debts of the marital partnership." (McKay on Community Property, p. 470, sec. 413; De Godey v. Godey, 39 Cal. 157; Biggi v. Biggi, 98 Cal. 35, 35 Am. St. 141, 32 P. 803; Whetstone v. Coffey, 48 Tex. 269; Kirkwood v. Donman, 80 Tex. 645, 26 Am. St. 770, 16 S.W. 428; Southwestern Mfg. Co. v. Swan (Tex. Civ.), 43 S.W. 813; Gratton v. Weber, 47 F. 852; Ambrose v. Moore, 46 Wash. 463, 90 P. 588, 11 L. R. A., N. S., 103; James v. James, 51 Wash. 60, 97 P. 1113, 98 P. 1115; Tabler v. Peverill, 4 Cal.App. 671, 88 P. 994; Thomas v. Thomas, 27 Okla. 784, Ann. Cas. 1912C, 713, 109 P. 825, 113 P. 1058, 35 L. R. A., N. S., 124; Stelz v. Shreck, 128 N.Y. 263, 26 Am. St. 475, 28 N.E. 510, 13 L. R. A. 325; 9 R. C. L., Divorce and Separation, sec. 319; Garrozi v. Dastas, 204 U.S. 64, 27 S.Ct. 224, 51 L.Ed. 369.)

"Where no disposition of property is made at the time of the decree of divorce the parties become tenants in common and a separate action may be brought for a partition thereof. In such action the property found in the possession of the parties at the dissolution of the community is, presumptively, community, whether or not the community is dissolved by death of one of the parties or by decree of a court." (Speer's Law of Marital Rights in Texas, sec. 551, pp. 712, 713.)

The fixed interest in the community vests in the wife. (Kohny v. Dunbar, 21 Idaho 258, Ann. Cas. 1913D, 492, 121 P. 544, 39 L. R. A., N. S., 1107.)

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

Appellant and respondent intermarried in 1904, and were thereafter husband and wife until September 26, 1916, when respondent, who had left her husband some three years before and taken up her residence in the state of Washington, secured a divorce from him in the courts of that state, upon constructive service of summons. During the marital relation, appellant filed a homestead entry upon the SW. 1/4 of the SE. 1/4 of sec. 24, T. 2 N., R. 2 W., B. M. This husband and wife occupied these premises as their home during the period they were required to live upon the same in order to secure patent, and until the wife took up her residence in the state of Washington, so that the property in question was community property at the time respondent secured her divorce and thereby dissolved the marital community. The decree of divorce was limited to a dissolution of the marriage relation, and did not attempt to adjust any property rights of the parties. Respondent brings this action against her former husband to quiet title in her to an undivided half interest in said homestead, and for an accounting of the personal property and partition of said real estate. Appellant demurred generally and specially, and moved to strike certain parts of the complaint, and all of said pleas having been overruled, he answered, admitting the marital relation, that said property described in the complaint had been acquired as therein alleged, and that the same was community property, but denied all of the allegations relating to his failure to support respondent while she was his wife, and alleged by way of cross-complaint that she deserted and abandoned him and said homestead and departed from the state without cause or reason therefor, and procured said divorce in the state of Washington without his knowledge or consent, he never appearing in said action nor authorizing any appearance on his behalf, and prayed that respondent should be adjudged to have no right, title or interest in or to said premises.

The cause was tried to the court, who found generally for the respondent as to the material allegations of her complaint, that said premises were acquired under the homestead law by the joint effort and residence thereon of both of them during their four years of joint occupancy, that she made and had recorded her declaration of homestead upon the same, that by reason of her failing health and destitute circumstances she left the state of Idaho and went to friends in Washington, where she procured a divorce, and had not since returned, that after she left said homestead appellant had sold all of their community personal property, and had received certain rentals for the land during the years following her absence, in all amounting to $ 739.43, but also found that the husband had discharged a mortgage of $ 600 against said real estate, and as a conclusion held that from the time respondent secured said divorce appellant held an undivided interest in said premises in trust for her and that she was also entitled to receive from the proceeds of the sale of the personal property and the rents and proceeds of said real estate during said time $ 576, less credit for one-half the amount paid by appellant to discharge said mortgage, including interest, and that she was owner in fee and entitled to the possession of an undivided one-half interest in and to said premises, and a decree was entered in accordance therewith, from which this appeal is taken.

The question here presented for determination is as to whether or not a married woman may remove to a foreign jurisdiction and invoke the power of the courts of such state to dissolve the marital community, upon constructive service of summons, and thereafter return to this state and through its courts assert a right to her half of the community property.

In Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A. 60, this court held that one who voluntarily leaves this jurisdiction and the domicile and community property located in this state, and obtains a decree of divorce in a foreign jurisdiction, cannot maintain an independent action thereafter in this jurisdiction for a division of the community property. This would appear to be decisive of the question presented by the instant case, unless the law pertaining to the interest of a wife has been modified since that decision was rendered in 1904, or unless the court now departs from the doctrine announced in that case.

R. S sec. 2505, at the time of the Bedal-Sake decision, supra, gave the husband the management and control of the community property, with the same absolute power of disposition, other than testamentary as he had of his separate property, except as to that part of the community property used as a homestead by the husband and wife. This was modified by Sess. L. 1913, p. 425, providing that the husband could not sell, convey or encumber any of the community real estate unless the wife joined with him in executing the deed or other instrument of conveyance. ...