Saul v. Saul, No. 7246.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: GRONER, Justice, and EDGERTON and RUTLEDGE, Associate Justices
• Citation: 122 F.2d 64,74 App. DC 287
• Parties: SAUL v. SAUL.
• Docket Number: No. 7246.
• Decision Date: 21 July 1941

74 App. DC 287, 122 F.2d 64 (1941)

SAUL
v.
SAUL.

No. 7246.

United States Court of Appeals for the District of Columbia.

Decided July 21, 1941.

122 F.2d 65

Henry I. Quinn, James C. Wilkes, James E. Artis, Frank J. Hogan, and Nelson T. Hartson, all of Washington, D. C., for appellant.

Alvin L. Newmyer and David G. Bress, both of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The plaintiff, appellant here, sued to annul his marriage to defendant, asserting that she was incompetent to enter the marital relation. The basis for the claim is the alleged invalidity of a Tennessee divorce, which she secured three days before the marriage, from Mr. Gardner, a former husband who remains living at the present time. By cross bill Mrs. Saul sought separate maintenance for herself and their adopted infant son and the custody of the child. The decree was in her favor as to annulment, maintenance and custody of the son.

The principal issues relate to the effect which should be given to the Tennessee divorce. Mrs. Saul, then Mrs. Gardner, instituted the suit June 7, 1927, in the Circuit Court of Davidson County. The decree in her favor was rendered July 9, 1927. Under Tennessee law the court had jurisdiction to grant divorce, for the statutory causes, "if the petitioner has resided in this state two years next preceding the filing of the bill or petition."¹ Mrs. Gardner's bill alleged that she was, and had been

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for the required period, a citizen and resident of Davidson County, Tennessee, and that Mr. Gardner "probably claims his legal residence in Massachusetts." The court found that he was a nonresident and notice of suit was given by publication pursuant to the statute² and an order of court. Mr. Gardner did not appear nor did he, prior to entry of the decree, receive notice of the suit other than that afforded by the publication

By previous arrangement, Mr. Saul met Mrs. Gardner at Wheeling, West Virginia, a day or two after the decree was rendered, and they proceeded by automobile to Richmond, Indiana, where they were married on July 12, 1927. Thereafter they lived together as husband and wife at various places in the United States and Canada until their separation in 1934.

In addition to the facts charged as ground for annulment, plaintiff alleged that Mrs. Saul deserted him in April, 1934, departing voluntarily from their home in Riverside, Ontario. Since then they have not cohabited. Defendant, however, says that plaintiff forced her to leave, and thus abandoned her and the adopted son. It was not until July, 1934, three months after the separation, that the idea of annulling the marriage first occurred or was suggested to Saul, during a conference with counsel.

The gist of plaintiff's case is that the defendant, then Mrs. Gardner, was not a resident of Tennessee at the time of the divorce; that she was domiciled then in the District of Columbia, as was Mr. Gardner; that the courts of Tennessee were therefore without jurisdiction to grant a valid divorce; and that the decree was obtained by fraud perpetrated on the court.

Most broadly, the argument challenges the jurisdiction of Tennessee and her courts to deal with the Gardners' marital status. Necessarily this implies that the evidence does not support the finding in this cause that Mr. Gardner, and hence also his wife, were domiciled in Tennessee when the divorce was sought and secured.

More narrowly, assuming that jurisdiction of the subject matter existed, plaintiff urges that the decree was wanting in due process for lack of sufficient notice to Mr. Gardner. The statute authorized notice by publication as to nonresidents. Plaintiff says that the findings in this cause, contrary to that of the Tennessee court, establish that Gardner was domiciled in Tennessee, and consequently the published notice did not comply with the statute or due process of law. Plaintiff thus seeks to impale defendant upon one or the other horn of a dilemma, want of jurisdiction of the res or lack of due process in the notice of suit.

Defendant's escape likewise is doublepronged. She says the evidence fully supports the finding as to Mr. Gardner's domicil, hence also as to her own. She urges too that the Tennessee statute providing for published notice to nonresidents applies not only to persons not domiciled in Tennessee, but also to domiciliaries who are merely absent from the state, which she claims was Mr. Gardner's situation. Accordingly, in her view, the court had complete jurisdiction of the res and the notice fully complied with the statute and due process. Defendant also strongly insists that plaintiff is estopped to deny the validity of the divorce by having aided and abetted her to secure it.

The principal issues on the appeal, therefore, may be stated briefly:

(1) Whether the evidence is sufficient to sustain the trial court's findings and conclusions concerning the domicil or domicils of Mr. and Mrs. Gardner in 1927 and the preceding years;

(2) If so, whether the published notice complied with the statute and with due process of law; and

(3) Whether plaintiff should be permitted to challenge the validity of the divorce.

I. We think the evidence is sufficient to sustain the finding that the Gardners' domicil was in Tennessee at the time of the divorce.

The evidence is extensive, detailed and in many respects conflicting. But without minute review it clearly shows that Mr. Gardner's domicil of origin in Massachusetts

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continued from his birth in 1890 to 1912, when he came to Washington, and that it probably continued until 1917, when he went to Nashville, Tennessee, to live and work. Mrs. Gardner's domicil of origin was in Tennessee from her birth until her marriage to Mr. Gardner in 1917

We think too that the evidence clearly sustains the court's finding that Gardner acquired a new domicil in Tennessee in 1917. He was physically present there. His work was there. It seemed permanent, except for possible interruption by military service. He formed happy social attachments there. He became engaged to a Tennessee girl. Both desired and intended to make Tennessee their home. After his marriage, when he was inducted into service, he intended to return to Nashville to live and work. He did return there when he was discharged. From 1912, when he left Massachusetts, to 1917, Gardner's life had been a roving one. He moved about frequently from place to place over a wide area in the central and southern states as his work, construction engineering, required. His business headquarters and address for the certain receipt of mail were in Washington, but he spent little time here, had no permanent physical or social connections with the community, and had no permanent home in any true sense of the word. Neither his connections with Massachusetts nor those with Washington were such as to sustain the presumption of continuance of domicil in the face of the evidence of intention to change it and the acts bearing this out in 1917.

It is clear too that the Tennessee domicil continued until 1919, when Gardner was discharged from military service and returned to Nashville, where his wife had remained and worked during his absence. The crucial question, we think, is whether the evidence sustains the finding that the Tennessee domicil continued from 1919 to 1927, during which time the Gardners resided and worked in Washington. Plaintiff urges most insistently that by coming back to Washington, working and living here from 1919 to 1927, both Gardner and his wife acquired a domicil here which continued until the divorce was sought and granted. A finding to that effect might have been sustained, but the evidence is conflicting and the contrary one must stand. It is supported both by legitimate inferences from their mode of living and by direct testimony concerning their absence of intention to make Washington their permanent home.

There is nothing to prove that they intended to make it such when they came here in 1919. He came to see his brother about working again for the engineering firm which the latter headed. Unexpectedly a governmental position opened up, and Gardner accepted it, though it afforded little, if any, more than subsistence.

From that time until the divorce the Gardners lived and worked in Washington. But they lived more like transients than as permanent residents.³ They subsisted, but they hardly established a home. Their life was not that of persons permanently attached to the place. Nothing in the way they lived and were forced to live gives clear, much less incontrovertible, evidence of animus manendi. On the contrary, their mode of life supports the inference that they were sojourners, awaiting an opportunity to return to their home community, as the trial court found.

The finding is supported also by the testimony of Mr. Gardner and Mrs. Saul concerning their intentions to return to Tennessee when they came to Washington and during their sojourn here. The court relied particularly upon the testimony of Gardner, which was given "in a straightforward and convincing manner and without evasion."

As against these facts, plaintiff offers no incontrovertible evidence of the Gardners' intention to make Washington their permanent home when they came or afterward. He relies chiefly upon the length of their residence here and statements made by Gardner at various times, in civil service applications and other documents, that Washington was his "residence," "legal residence," "bona fide legal residence," "voting legal residence," etc. There was other evidence to show the Gardners' intention

122 F.2d 68

to reside here indefinitely or until employment in Tennessee might be afforded. But its effect, at most, was to create conflict with the evidence offered by defendant. That might have sustained a finding of the court in plaintiff's favor, but...