Robinson v. Robinson

• Decision Date: 15 December 1949
• Docket Number: No. 7516,7516
• Citation: 212 P.2d 1031,70 Idaho 122
• Parties: ROBINSON v. ROBINSON.
• Court: Idaho Supreme Court

Page 1031

212 P.2d 1031

70 Idaho 122

ROBINSON v. ROBINSON.

No. 7516.

Supreme Court of Idaho.

Dec. 15, 1949.

Wm. S. Hawkins, Coeur d'Alene, E. L. Miller, Coeur d'Alene, Whitla & Knudson, Coeur d'Alene, for appellant.

Clay V. Spear, Coeur d'Alene, for respondent.

TAYLOR, Justice.

Appellant (plaintiff below) came to Idaho from Pennsylvania, arriving July 9th, 1947. August 20th, 1947, he filed action for divorce in the District Court at Coeur d'Alene in Kootenai County, Idaho, alleging residence in Idaho for the required time. Summons was personally served on the defendant in Delaware County, Pennsylvania, on September 11, 1947. Defendant made no appearance. Her default was entered October 3, 1947 and on the same day after hearing plaintiff's proof, findings of fact, conclusions of law, and decree of divorce were made and entered. The court found that plaintiff had been a bona fide resident of the state of Idaho for more than six full weeks immediately preceding the commencement of the action. About October 7, 1947, the plaintiff moved to Vancouver, Washington, where he was married to a second wife on October 11, 1947, and where he has since resided.

August 2, 1948, the defendant filed a motion in this the original divorce suit, asking that the judgment be vacated on the ground that it is void and was rendered without jurisdiction. In her supporting affidavit she charges that the plaintiff was not a bona fide resident of Idaho for the period of six full weeks next preceding the commencement of the divorce action; that he never established a bona fide residence in the state; and that he perpetrated a fraud upon the court, by knowingly testifying falsely that he had been a resident of Idaho for six full weeks immediately preceding the commencement of the action.

The issue was eventually submitted to the District Judge upon affidavits and other documentary and written evidence. The motion was granted and an order was made and entered November 6, 1948, vacating and setting aside the divorce decree 'for the reason that plaintiff had not been a resident of the State of Idaho for six full weeks next preceding the commencement of the action herein.'

Neither in her original affidavit nor in any other part of the showing made by her in support of her motion did the defendant suggest that she had been prejudiced in any way by the alleged misconduct of the plaintiff. These parties separated in 1946. In June, 1947, they entered into a lengthy and detailed separation agreement, in the negotiation of which defendant was represented by her own counsel. The agreement anticipates the eventuality of a divorce and the remarriage of either or both of the parties. It is not intimated in these proceedings that the husband has in any way breached this contract in the divorce action. In fact the decree at his instance requires the same payments to the wife for alimony and support as are required by the agreement. No relief is sought on the ground of 'mistake, inadvertence, surprise or excusable neglect.' In short, the ground urged is intrinsic fraud on the court.

The transcript was filed March 10, 1949. On March 26th appellant filed a petition asking leave to augment the record by a supplemental transcript containing the records of the district court as to the opening and closing dates of the terms of that court in Kootenai County for the year 1947. The petition was granted March 29th. The respondent's counsel moved to vacate the order and to strike the supplemental transcript on the grounds that, he had not been afforded a hearing on the petition, and that, the supplemental matter was not a part of the record in the case, and had not been called to the attention of the district court or considered by that court in the hearing and determination of the motion to vacate the decree. A hearing on such a petition is not a matter of right. Rules 13 and 44 of this court are essentially procedural. However, we will consider the objections. The purpose of the augumentation is to show that defendant's motion to vacate the decree was filed more than six months after the end of the term in which the decree was granted. Counsel for appellant allege that they were misinformed by the clerk of the district court that the term closed March 9, 1948, and did not learn until March 10, 1949, that the term actually ended October 27, 1947; and that for that reason they did not urge in the district court the objection that more than six months had elapsed between the end of the term and the filing of the motion; and that for the same reason the record was not called for in their original praecipe. Due diligence appears.

As to the objection that this question was not presented to nor considered by the trial court, the records concerned are the trial court's own general records. That court will take judicial notice of the opening and closing of its terms as fixed by itself. 31 C.J.S., Evidence, § 47, p. 612; 20 Am.Jur. 101; Riley v. First Trust Co., 65 Ind.App. 577, 117 N.E. 675. If the trial court does not take notice of a fact cognizable by it, the reviewing court may do so, even so. 5 C.J.S., Appeal and Error, § 1488, p. 134, Hill v. Bice, 65 Idaho 167, 139 P.2d 1010; Standley v. Knapp, 113 Cal.App. 91, 298 P. 109. The supplemental transcript was properly filed. Mendini v. Milner, 47 Idaho 322, 276 P. 35; Owen v. Taylor, 62 Idaho 408, 114 P.2d 258; Henderson v. Nixon, 66 Idaho 780, 168 P.2d 594; Guiles v. Kellar, 68 Idaho 400, 195 P.2d 367.

The jurisdiction of the courts of this state in divorce actions is conferred by the constitution. Art 5, section 20, as follows: 'The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.' The broad jurisdiction thus created is not subject to diminution by legislative act. Constitution, Art. 5, section 13; Fox v. Flynn, 27 Idaho 580, 150 P. 44.

The legislature has provided that: 'A divorce must not be granted unless the plaintiff has been a resident of the state for six full weeks next preceding the commencement of the action.' Section 32-701, I.C. This section does not diminish the jurisdiction of the district court. It merely prescribes a condition or qualification which the plaintiff must meet to entitle him to a divorce. In re McNeil's Estate, 155 Cal. 333, 100 P. 1086; DeYoung v. DeYoung, 27 Cal.2d 521, 165 P.2d 457; Schillerstrom v. Schillerstrom, N.D., 32 N.W.2d 106, 2 A.L.R.2d 271; Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017; Kern v. Field, 68 Minn. 317, 71 N.W. 393, 64 Am.St.Rep. 479; Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198; Williams v. Williams, Tex.Civ.App., 146 S.W.2d 1013; Therwhanger v. Therwhanger, Tex.Civ.App., 175 S.W.2d 704. The question as to whether the plaintiff has been a resident of the state for the required time, is not one of jurisdiction. It is otherwise with 'domicil.' Since as action for divorce is one quasi in rem, in which the marital status is the res, jurisdiction of the res depends on 'domicil.' Stewart v. Stewart, 32 Idaho 180, 180 P. 165; Gorges v. Gorges, 42 Idaho 357, 245 P. 691; Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366. Domicil as here used means: '* * * an abode animo menendi, a place where a person lives or has his home, to which, when absent, he intends to return, and from which he has no present purpose to depart.' 159 A.L.R. 499. Reubelmann v. Reubelmann, 38 Idaho 159, 220 P. 404; Robinson v. Robinson, 362 Pa. 554, 67 A.2d 273; Hawkins v. Winstead, 65 Idaho 12, 138 P.2d 972; Williams v. State of North Carolina supra; Allan v. Allan, 132 Conn. 1, 42 A.2d 347, 159 A.L.R. 493 and note 496; Hiles v. Hiles, 164 Va. 131, 178 S.E. 913, 106 A.L.R. 1 and note 6.

The respondent in this proceeding seeks to void the decree both on the ground that the court was without jurisdiction, and that the statutory requirement of six weeks residence was not shown. As to the first it is asserted that he did not establish a domicil in Idaho because the necessary intent does not appear. When the complaint was filed and service had, it became necessary for the court to entertain the suit to the extent of determining whether it had jurisdiction of the res. That is, the court was required to determine whether plaintiff had established a domicil in Idaho. The district court has inherent power to pass upon its own jurisdiction. Williams v. Sherman, 36 Idaho 494, 212 P. 971; Haines v. State Ins. Fund, 65 Idaho 450, 145 P.2d 833; Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578. If the court determines that it has jurisdiction it will proceed to try other issues raised and enter judgment. If it determines that it does not have jurisdiction it will not try the other issues, but will dismiss the action without judgment on the merits. Winston v. Winston, 50 App.D.C. 321, 271 F. 551. In this case the court determined from the evidence produced by plaintiff that he had established a domicil in Idaho. It also found from the evidence that such residence had continued for the statutory time required, and that the ground for divorce alleged had been proven. Upon these findings the conclusion was reached that plaintiff was entitled to a divorce, and decree was accordingly entered. Now, after nine months from the close of the term, defendant sought and obtained a retrial of the issues as to jurisdiction and residence.

One of the oldest and most universally accepted juridical principles is that embraced in the doctrine of res judicata. In the absence of fraud or collusion a judgment is conclusive as between the parties and their privies on all issues which were (or should have been) litigated in the action. The principle is equally applicable in cases of judgment by default. King v. Richardson, 54 Idaho 420, 33 P.2d 1070; Last Chance Mining Co. v. Tyler Min. Co., 157 U.S. 683, 15 S.Ct. 733,...