Schwartz v. Schwartz

• Decision Date: 02 May 1960
• Citation: 113 Ohio App. 275,17 O.O.2d 267,173 N.E.2d 393
• Parties: , 17 O.O.2d 267 Charleen SCHWARTZ, Plaintiff-Appellant, v. Herbert T. SCHWARTZ, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 275

113 Ohio App. 275

173 N.E.2d 393, 17 O.O.2d 267

Charleen SCHWARTZ, Plaintiff-Appellant, v.Herbert T. SCHWARTZ, Defendant-Appellee.

Court of Appeals of Ohio, First District, Hamilton County.

May 2, 1960.

Frank J. Richter, Richter & Dewan, Cincinnati, for plaintiff-appellant.

Herbert T. Schwartz, pro se, for appellee.

O'CONNELL, Judge.

The facts in this case are that the defendant, Herbert T. Schwartz, and Dora Zaslavsky were married about 1926 in New York City; that later on they agreed upon a divorce; that in New York State adultery is the only ground of divorce; that about 1934they therefore arranged for, and staged a fraudulent act of adultery, at which the said defendant, Herbert T. Schwartz, was not even present.The defendant in his deposition elaborates on this situation as follows:

'Q.Well, what arrangements did you make with Dora on your return from Ann Arbor?A.Well, we agreed to separate and get that divorce and do it that way.

'Q.And what was said to you at the time, in general, about it?A.Well, just that we agreed to frame up this adultery.

'Q.And do you recall what specific arrangements, if any, were made with respect to the evidence on which a divorce would be based.A.Well, it was just that one of these fraudulent adultery scenes in which the brother of my wife was to catch us in the act, so to speak.

'Q.Were you actually present at this scene?A.No, no.

'Q.Do you know what went on there of your own knowledge?A.Justwhat I have been told.There was a woman whom I don't know.I suspect I might have known who she was, some girl that I knew in Greenwich Village.'

The facts further disclose that the divorce decree was granted in 1935; that the plaintiff and the defendant were married in State College, Pennsylvania in 1935; that the plaintiff and defendant lived together as man and wife until the summer of 1957; that their four children are now living with the plaintiff.

The petition of the plaintiff alleges that at the time of her marriage to the defendant'there was a prior existing undissolved marriage between the defendant and a third party' and the plaintiff prays that her marriage to the defendant be declared null and void for this reason.The defendant in his answer 'admits the allegations in the petition contained'.

It is the claim of the plaintiff and the defendant that their marriage was null and void for the reason that the previous marriage to Dora Zaslavsky was undissolved.This they maintain for the reason that the said previous divorce was obtained by fraud and deceit.

The trial court held that 'under the full faith and credit clause of the United States Constitution it must give full faith and credit to the divorce decree in the Supreme Court of New York County, New York, in which a decree of divorce was awarded to Dora Zaslavsky Schwartz against the defendant, Herbert T. Schwartz, on August 10, 1935, and that the prayer of the plaintiff's petition for that reason should be denied'.

The case is in this court on an appeal from the judgment of the trial court.The question to be determined then is whether under Art. IV, Section 1 of the Constitution of the United States (full faith and credit clause)a court can render a judgment contrary to the judgment rendered in a sister state.

Now, as it is said in 30 Am.Jur.pp. 304 & 306'a valid judgment of a sister state is entitled to full faith and credit under the Federal Constitution and Statutes'.Thus, in Anderson v. Anderson, 8 Ohio 709, it is said in the syllabus that 'to a suit upon a judgment rendered in law in Virginia, the plea that it was obtained by fraud is not available, but the judgment can only directly be impeached in chancery'.However, 'the requirement of full faith and credit is to be read and interpreted in the light of well established principles of justice protected by other constitutional provisions which it was never intended to modify or override'.

So, in the 11th syllabus of Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111, (32 S.Ct. 641, 56 L.Ed. 1009,) it is said that: 'the full faith and credit clause is to be construed in the light of the other provisions of the Constitution, none of which it was intended to modify or override'.And there were similar holdings in Old Wayne Mutual Life Association of Indianapolis v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345andStewart v. Eaton, 287 Mich. 466, 283 N.W. 661, 120 A.L.R. 1354.

Moreover, it has been held (30A Am. Jur. p. 315) that 'no state may obtain in the tribunals of another jurisdiction full faith and credit for a judgment which is based upon an unconstitutional law or is rendered in a proceeding wanting in due process of law enjoined by the fundamental law'; that 'due process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process'; and that 'if requirements of due process are not met, a judgment in rem (such as a judgment affecting status) is not entitled to full faith and credit in another state'.

Thus it was held in Simmons v. Simmons, 57 App.D.C. 216, 19 F.2d 690, 54 A.L.R. 75(syllabus 4) that 'marriage in Dstrict of Columbia contracted after divorce of one of parties fraudulently obtained in the state of Virginia, will not be sustained on any principal of full faith and credit to be accorded the Virginia decree.'

And in Syllabus 4 of Stephens v. Thomasson, 63 Ariz. 187(160 P.2d 338), this is the language: 'In action on judgment of another state, defendant may impeach judgment on allegations of fraud in procuring it.'

So, in syllabus 2 of Howland v. Stitzer et al., 231 N.C. 528, 529(58 S.E.2d 104), we find that: 'The judgments of another state may be collaterally attacked here only on the grounds of (1) a lack of jurisdiction (2) fraud in procurement (3) being against public policy.Constitution of United States, Art. IV, Section 1.'See, also: Durden v. Durden, 184 Ga. 421, 191 S.E.2d 455.

However, it was said in Syllabus 3 of Perkins v. Benguet Consol. Mining Co., 55 Cal.App.2d 720(132 P.2d 70), that: 'the rule that it may be shown that the judgment of another state * * * is in excess of jurisdiction or is affected by fraud is subject to the limitation that if the court of the state which rendered the judgment has expressly litigated the jurisdictional questions or the matter of fraud, that determination becomes res judicata on those points and is...