Rodda v. Rodda

• Decision Date: 30 November 1948
• Citation: Rodda v. Rodda, 185 Or. 140, 200 P.2d 616, 202 P.2d 638 (Or. 1948)
• Parties: RODDA <I>v.</I> RODDA
• Court: Oregon Supreme Court

185 Or. 140

200 P.2d 616

202 P.2d 638

RODDA

v. RODDA

Supreme Court of Oregon.

Argued September 14, 1948.

Affirmed November 30, 1948.

Petition for rehearing denied January 5, 1949.

Motion to recall mandate January 21, 1949.

Motion granted February 8, 1949.

ON THE MERITS

Divorce — Foreign divorce decree — Full faith and credit — Notice — Constructive service

1. A divorce decree granted by a state to one of its domiciliaries is entitled to full faith and credit in sister states, even though the other spouse was given notice of the divorce suit only through constructive service. U.S.C.A. Const. art. 4, § 1.

Divorce — Jurisdiction — Domicile

2. Jurisdiction of a divorce suit depends on domicile.

Divorce — Domicile — Foreign court — Prima facie weight — Not conclusive — Relitigated — Burden of undermining verity

3. Though finding of domicile by court granting divorce decree is entitled to prima facie weight, it is not conclusive in a sister state but may be relitigated there, the burden of undermining the verity which the foreign decree imports, resting on the assailant. U.S.C.A. Const. art 4, § 1.

Divorce — Foreign state — bona fide residence — Foreign court — Jurisdiction — Dissolution of marriage — Full faith and credit

4. Where Oregon doctor went to Nevada March 26, 1946 to secure a divorce, on May 2 he took employment as architect's assistant in Nevada, on May 5, he passed Nevada Medical Board examination and was admitted to practice medicine, on May 17 he filed suit for divorce which was granted June 19, on November 6, he voted in Nevada, about March 15, 1947 he filed a federal income tax return in which he gave his residence as Nevada, and from April 12, 1947 on he practiced as a radiologist in Nevada, he established a bona fide domicile in Nevada giving Nevada court jurisdiction to dissolve marriage, and Oregon courts were required to give full faith and credit to Nevada divorce decree. U.S.C.A. Const. art. 4, § 1.

Divorce — Full faith and credit — Foreign divorce decree — Prior Oregon separate maintenance decree — Oregon law

5. The full faith and credit which Oregon courts were required to give to Nevada divorce decree obtained by former resident of Oregon who established a bona fide domicile in Nevada, did not compel a decision that separate maintenance decree of Oregon court was wiped out by the divorce decree, but that was a question of Oregon law. U.S.C.A. Const. art. 4, § 1.

Constitutional law — Separate maintenance statute — Effect — Construe

6. In determining effect of separate maintenance statute, court's sole function was to construe the statute and not to shape the state's policy which was a duty resting with the legislature. Laws 1941, c. 408, § 1 et seq.

Divorce — Alimony — Annulment — Dissolution of marriage

7. An award of alimony under statute authorizing an allowance of alimony to party not in fault in a divorce suit, may be made only when the court grants a decree of annulment or dissolution of the marriage. O.C.L.A. § 9-914, subd. 3.

Husband and wife — Separate maintenance — Special and statutory — Court's powers

8. Separate maintenance proceedings, being special and statutory, a court has only such powers as the legislature has granted. Laws 1941, c. 408, § 1 et seq.

Divorce — Foreign divorce decree — Prior Oregon separate maintenance decree

9. Entry of valid Nevada divorce decree in favor of husband terminated, as of the date of the divorce decree, obligations of husband to wife under a prior Oregon decree for separate maintenance. Laws 1941, c. 408, § 1 et seq.

Constitutional law — Divorce — Alimony — State's policy — Legislature

10. The determination of the state's policy touching divorce and alimony is the province of the legislature, not of the courts.

Judgment — Fraud — Foreign judgment — Collateral attack — Jurisdiction

11. Fraud in procurement of the judgment of a foreign state is ground for collateral attack on the judgment, but fraud must have been in nature of fraudulent misrepresentations, designed to mislead, with knowledge of falsity, and resulting in damaging deception, and it must have gone to jurisdiction of court and have been extrinsic or collateral to matter tried in the foreign action.

Judgment — Fraud — Foreign judgment — Collateral attack — Full and fair defense

12. Fraud in procurement of a judgment of a foreign state which is ground for collateral attack on the judgment, must have been such that it prevented party complaining from making a full and fair defense. U.S.C.A. Const. art. 4, § 1. Divorce — Foreign state — Bona fide domicile — Foreign court — Fraud — Collateral attack

13. Fact that husband who went from Oregon to Nevada to obtain a divorce after establishing a bona fide domicile in Nevada, did not inform Nevada court of the existence of a prior Oregon decree of separate maintenance in favor of wife, was not fraud which would subject the Nevada divorce decree to collateral attack in Oregon. N.C.L. 1929, § 9467.06, as amended by Laws 1939, c. 23; U.S.C.A. Const. art. 4, § 1.

Husband and wife — Foreign divorce — Motion — Affidavits

14. On motion by husband to have separate maintenance decree in favor of wife vacated because he had subsequently obtained a valid foreign divorce, court properly permitted husband to support his motion by affidavits. O.C.L.A. § 4-201.

Divorce — Foreign divorce — Collateral impeachment

15. On motion by husband to have separate maintenance decree in favor of wife vacated because he had obtained a valid foreign divorce on ground that the parties had lived apart for three consecutive years without cohabitation, divorce decree could not be impeached collaterally by wife on ground that evidence was insufficient to establish that there had been no cohabitation. N.C.L. 1929, § 9467.06, as amended by Laws 1939, c. 23; U.S.C.A. Const. art. 4, § 1.

Husband and wife — Unsuccessful appeal by wife — Costs and disbursements

16. On unsuccessful appeal by wife from decree granting husband's motion to have separate maintenance decree in favor of wife vacated because husband had obtained a valid foreign divorce decree, wife was entitled to costs and disbursments.

ON MOTION TO RECALL MANDATE

Costs — 20-day period — File — Cost bill — Pendency of petition for rehearing

17. The 20-day period provided by statute within which appellant might have served and filed her cost bill began to run when decision was filed and the time was not extended by pendency of petition for a rehearing. O.C.L.A. § 10-913.

Costs — 20-day period — Further time — Filing

18. Under statute providing that cost bill shall be filed within 20 days after filing of opinion or within such further time as may be allowed by the court, the Supreme Court may allow further time for filing the cost bill though the original 20-day period has expired. O.C.L.A. § 10-913. Costs — Misinterpretation of statute — Additional time — File — Cost bill

19. Where failure to file cost bill within time provided by statute arose from misinterpretation of statute, the Supreme Court would grant additional time within which to file the cost bill. O.C.L.A. § 10-913.

Appeal and error — Recall mandate

20. The Supreme Court has power to recall its mandate.

  See 20 C.J.S., Costs, § 349
                  27 C.J.S., Divorce, § 332
                  1 A.L.R. (2d) 1385
                  14 Am. Jur. 54
                  17 Am. Jur. 556.
                

IN BANC.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Elton Watkins, of Portland, argued the cause and filed a brief for appellant.

Joe P. Price and M.E. Tarshis, both of Portland, argued the cause and filed a brief for respondent.

Suit for divorce by James M. Rodda against Ethelyn C. Rodda, wherein the defendant was awarded a decree of separate maintenance with an allowance of $100 a month. The plaintiff, after having obtained a foreign divorce decree, filed a motion to have separate maintenance decree, vacated on ground that the foreign divorce decree had wiped out the decree of separate maintenance. From a decree vacating the separate maintenance decree, the defendant appeals.

AFFIRMED.

LUSK, J.

The principal question on this appeal is whether a decree for separate maintenance rendered by a court of this state in favor of a wife, survives a subsequent decree of divorce granted to the husband by a Nevada court. There is also involved a question, which must first be determined, as to whether the Nevada decree has extra-territorial validity.

On March 17, 1945, the Circuit Court for Multnomah County, Oregon, in a suit for divorce brought by the plaintiff and respondent, Dr. James M. Rodda, and in which Mrs. Rodda, the defendant and appellant, sought a decree of separate maintenance based upon cruel and inhuman treatment, entered a decree in her favor of separation for an unlimited time from her husband's bed and board with an allowance of $100.00 a month. In the year 1946 Dr. Rodda sued his wife for divorce in the District Court of the State of Nevada for the Second Judicial District, Washoe County, Nevada, and on June 19 that court awarded him a decree of divorce on the ground that he and his wife for three consecutive years immediately preceding the filing of such suit had lived separate and apart without cohabitation. (See § 9478.06, Nevada Comp. L., 1929, as amended by Ch. 23, Stat. of Nevada, 1939.) Mrs. Rodda, who was and is domiciled in this state, was served with summons by publication and by mail. She did not appear in the suit, and the Nevada court never acquired jurisdiction of her. The proceedings in that court were ex parte.

On December 13, 1946, Dr. Rodda filed in the Circuit Court for Multnomah County a motion, supported by affidavit, to vacate that part of the separate maintenance decree requiring him to pay his wife $100.00 a month, on the ground that the Nevada divorce wiped out that decree. There was an order to show cause why the motion should not be allowed, in response to which Mrs. Rodda filed a showing substantially to the effect that the...