Scherer v. Scherer

• Decision Date: 28 May 1980
• Docket Number: No. 3-678A142,3-678A142
• Citation: 405 N.E.2d 40
• Parties: Howard J. SCHERER, Appellant, v. Carol L. SCHERER, Appellee.
• Court: Indiana Appellate Court

Page 40

405 N.E.2d 40

Howard J. SCHERER, Appellant, v. Carol L. SCHERER, Appellee.

No. 3-678A142.

Court of Appeals of Indiana, Fourth District.

May 28, 1980.

David H. Miller, Frank J. Gray, Ver Wiebe, Snow, Miller & Gray, Fort Wayne, for appellant.

John O. Feighner, Richard I. Snouffer, Snouffer, Haller & Colvin, Fort Wayne, for appellee.

MILLER, Presiding Judge.

This is an appeal from a summary judgment granted in favor of appellee Carol L. Scherer (wife) and denying a petition for dissolution of marriage filed by appellant Howard J. Scherer (husband).

We affirm.

The parties were married on January 19, 1970, one child was born to the marriage and they separated in October of 1976. On July 12, 1977, in the Allen Circuit Court, the husband filed a petition for dissolution of the marriage and prayed for an equitable distribution of property acquired during the marriage. The wife filed an answer in which she asserted several separate defenses:

1) The court lacked subject matter jurisdiction;

2) On January 17, 1977, both parties appeared before the Court of First Instance of the National District of the Dominican Republic, she in person and he by special power of attorney, proceedings were had, a final definitive divorce decree was rendered, and said decree was res judicata as to a divorce proceeding in Indiana (an authenticated copy of the decree was attached to the answer);

3) She relied upon the decree and representations of fact made by her husband and he was collaterally estopped from instituting an action for dissolution of marriage in Indiana;

4) On December 31, 1976 the parties executed a separation agreement disposing of real and personal property, child custody, visitation and support, which was in full and complete settlement of their rights in and to real and personal property and that in accordance with the specific provision that the agreement be made a part of any decree of dissolution, said agreement was merged into the foreign decree (a copy of the separation agreement was attached to the answer).

5) The doctrine of laches barred the divorce proceedings in Indiana.

On October 13, 1977, the wife filed a motion for summary judgment together with affidavits and supporting memorandum. In her memorandum she claimed the Dominican Republic divorce decree barred the Indiana proceeding. In support of her contention she argued the jurisdictional requirements of the Dominican Republic laws relative to divorce actions, which did not require domicile of either party, were satisfied by her physical presence in the Dominican Republic court and a voluntary appearance of her husband in the proceedings through a special power of attorney he had executed for the express purpose of obtaining a divorce in the Dominican Republic. Thus, she argued, the decree was valid in the Dominican Republic and entitled to recognition in Indiana under the doctrine of comity. She further asserted her husband was estopped to challenge the validity of the Dominican Republic decree because he voluntarily submitted to the jurisdiction of the foreign court, he accepted the benefits of the foreign decree and she fully relied on the validity of the decree and had since remarried.

Following a hearing on January 6, 1978, the trial court granted summary judgment to the wife, finding the parties had obtained a valid bilateral divorce decree in the Dominican Republic on January 17, 1977, and that the husband was estopped to deny its validity. The court consequently dismissed the husband's petition.

The husband contends the trial court erred in granting summary judgment in contravention of Ind. Rules of Procedure, Trial Rule 56. Specifically, the husband claims the trial court's judgment was contrary to law in that foreign nation divorce decrees where neither spouse was a good faith domiciliary in the foreign nation at the time the decree was rendered are invalid in Indiana. He concedes there is no direct authority in this State to support his proposition. However, he urges Indiana should now adopt the majority position as enunciated in Annotation, Domestic Recognition of Divorce Decree Obtained in Foreign Country and Attacked for Lack of Domicile by Jurisdiction of the Parties :

"Except in New York, foreign 'bilateral' divorce decrees, rendered upon the physical presence of the petitioning spouse in the divorcing nation and the voluntary appearance of the defendant spouse through an attorney, are not usually accorded domestic recognition."

13 A.L.R.2d § 3(d) at 1433.

The husband urges that his position is supported by Indiana case law dealing with recognition of decrees granted by sister states. We disagree. Notwithstanding the lack of domicile of the petitioning spouse, Indiana courts have afforded practical recognition, and give full faith and credit, to divorce decrees of the courts of sister states which have acquired the necessary jurisdiction of the subject matter and the parties, absent any fraud affecting jurisdiction. Scott v. Scott, (1949) 227 Ind. 396, 86 N.Ed.2d 533; Abney v. Abney, (1978) Ind.App., 374 N.E.2d 264, cert. denied, 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34. Hence, if both parties to a marriage submit to the jurisdiction of another state for the purpose of obtaining a divorce they are estopped from attacking the decree by virtue of their participation. See Ulrey v. Ulrey, (1952) 231 Ind. 63, 106 N.E.2d 793. The Court in Ulrey admittedly found that a Nevada divorce decree obtained by a husband at a time when he was supposedly in Chicago was subject to attack in Indiana. But the Court was careful to point out in that case that the wife could not have attacked the Nevada decree in Indiana if the Nevada Court had acquired jurisdiction by personal service upon her in that state or if she had appeared in that action. Thus, proper domicile in a sister state is not an absolute prerequisite to recognition of that State's decree in Indiana; a party may be estopped from denying its validity.

In Irons v. Irons, (1961) 242 Ind. 504, 178 N.E.2d 156, our Supreme Court reiterated the rule of law expressed by the U. S. Supreme Court in Williams v. North Carolina, (1945) 325 U.S. 226, 233, 65 S.Ct. 1092, 1097, 89 L.Ed. 1577 that

". . . (t)he challenged judgment must, however, satisfy our scrutiny that the reciprocal duty of respect owed by the States to one another's adjudications has been fairly discharged, and has not been evaded under the guise of finding an absence of domicile and therefore a want of power in the court rendering the judgment.

. . . The burden of undermining the verity which the Nevada decrees import rests heavily upon the assailant. . . . " (emphasis added) Irons at 161. In Irons the Court held the wife the party attacking the Nevada decree failed to meet her burden of showing no domicile. The same Court overruled the wife's petition for rehearing, at 180 N.E.2d 106, noting the policy of according recognition to such foreign divorce decrees must continue in the absence of legislative declaration to the contrary:

"In passing on appellee's petition for rehearing, we believe it appropriate to state here that it is not our province as a reviewing court to consider whether the practice of obtaining so-called ex parte out of state divorces, by persons who have spent much of their married life in this state, is good or bad for the litigants or society in general. Certainly many arguments could be levelled against the propriety of such divorces. If a change in our substantive law in this respect is desired, resort should be had to the state or national legislatures, which have a wide area of discretion in this field, so long as they act within constitutional bounds."

Id. at 106.

The aforementioned cases involved divorce decrees which had been entered in sister states and the application thereto of the full faith and credit clause of the United States Constitution. Here, however, we are dealing with a decree of a foreign nation to which the principles of comity, rather than full faith and credit, apply. Am.Jur.2d Divorce and Separation § 964. Ordinarily, recognition of such foreign decrees depends upon whether at least one of the spouses was domiciled in the foreign nation when the decree of divorce was rendered. 13 A.L.R.3d, supra, § 3(a) at 1425. As noted above, "mail order" divorce decrees in which neither spouse has appeared personally in the foreign jurisdiction are not recognized in the United States. 13 A.L.R.3d, supra, § 3(b) at 1429. And this appears to be equally true in the case of "ex parte" divorce decrees in which an absent spouse is served only extraterritorially or constructively and does not actually appear or file an answer in the action. 13 A.L.R.3d, supra, § 3(c) at 1431. Only New York fully recognizes without equivocation the validity of "bilateral" divorce decrees in which the petitioning spouse appears in the foreign court and the defendant spouse appears by counsel. 13 A.L.R.3d, supra, § 3(d) at 1433. However,

"(n)otwithstanding the general invalidity of a divorce decree rendered in a foreign nation where neither spouse was domiciled, a number of courts have indicated that practical recognition may be accorded such decrees by estoppel, laches, unclean hands, or similar equitable doctrine under which the party attacking the decree may be effectively barred from securing a judgment of invalidity."

13 A.L.R.3d, supra, § 8(a) at 1452, and cases cited therein.

Accordingly, in a proper case, a person may be precluded from attacking the validity of a foreign divorce decree if under the circumstances it would be inequitable for him or her to do so. See Dunn v. Tiernan, (1955) Tex.Civ.App., 284 S.W.2d 754. In that case, the husband was estopped from challenging a decree where he initiated the proceeding in which both parties consented, he considered himself divorced and told his wife she was free to remarry, and he delayed in bringing his action. The husband had considered...