Smiht v. Foto

• Citation: 285 Mich. 361,280 N.W. 790
• Decision Date: 30 June 1938
• Docket Number: No. 95.,95.
• Parties: SMIHT v. FOTO et al.
• Court: Supreme Court of Michigan

285 Mich. 361

280 N.W. 790

SMIHT

v.FOTO et al.

No. 95.

Supreme Court of Michigan.

June 30, 1938.

Suit by Frank G. Smith against Anna Mary Foto and others. From a decree dismissing the bill of complaint, plaintiff appeals.

Reversed and cause remanded.

Appeal from Circuit Court, Wayne County, in Chancery; Adolph F. Marschner, Judge.

Argued before the Entire Bench.

Henry K. Gibson, of Miami, Fla., and Edward Bryant, of Detroit, for appellant.

Edward N. Barnard, of Detroit, for appellee Anna Mary Foto.

Edward N. Barnard, of Detroit, for appellee Anna I. Smith.

POTTER, Justice.

April 14, 1937, plaintiff filed a bill of complaint against defendant Anna Mary Foto alleging he is a resident of the city of Miami Beach, Dade county, Florida, and defendant is a citizen of Detroit. The National Bank of Detroit, the Safe Deposit Company of Detroit, the Wolverine Storage Company, the Schettler Drug Company, and the Mon Mar Oil Corporation were made defendants because of their financial interests in the litigation, but the bill of complaint is really aimed at Anna Mary Foto (also known as Anna I. Smith).

Plaintiff alleges he met Anna Mary in the spring of 1931; she informed him she had been married to a man named Frank Foto but had obtained a divorce from him in Chicago in 1928. At the time plaintiff met her she was visiting in Detroit. Plaintiff and Anna Mary went through a marriage ceremony June 28, 1932, at Bowling Green, Ohio. Thereafter they lived together in Detroit and in 1935 moved to Miami Beach. In the spring of 1936 defendant Anna Mary filed a bill for divorce in the circuit court of Dade county, Florida, against plaintiff and obtained a decree of divorce from him May 21, 1936.

Plaintiff alleges that at the time of the divorce proceedings in Florida he made a property settlement with defendant Anna Mary whereby he conveyed to her a half interest in certain improved real estate and the furniture in Detroit and in a home at Miami Beach, Florida; in addition, transferred to defendant 300 shares of Burroughs Adding Machine Company stock and 700 shares of Lima Locomotive Works stock; that, in addition, he transferred to her during the time they were living together 1,100 shares of common stock of the Scotten Dillon Company, 50 shares of the common stock of the Mon Mar Oil Company, 2,800 shares of the common stock of the Glacial Oil Company, 100 shares of the common stock of the Schettler Drug Company, and $26,000, in par amount, of Dade and Orange county, Florida, bonds, together with jewelry of the value of $3,500, a number of shares of Florida-gold Citrus Company, a number of shares of Mary Lee Candy Company, and gave her during 1935 and 1936 approximately $13,000 in cash, in addition to other large amounts given her.

He alleges defendant Anna Mary had no right to enter into the marriage relation with him, that she was the wife of Frank Foto; that she never obtained a legal divorce from Frank Foto; that she did not get a divorce from Foto in Chicago but filed a bill for divorce in Wayne county, Michigan, January 23, 1931, alleging she had been for two years a resident of and domiciled in Wayne county, Michigan, although up to that time she had been living in Exeland, Wisconsin; that she obtained a divorce in Wayne county, Michigan, against Frank Foto, based upon an order of publication without personal service of process; that to obtain that decree of divorce she practiced fraud upon the court in Wayne county in that she had not been a resident for two years in Michigan, was not a resident of Michigan at all, was in Detroit on a visit, was visiting in Detroit under the name of Wanda Marino; and, therefore, the Wayne circuit court in chancery had no jurisdiction to grant to her a decree of divorce (1) because of the fraud practiced upon it by the plaintiff in causing it to exercise jurisdiction; and (2) because the decree was void because based upon an order of publication and not upon personal service.

Plaintiff claims he relied upon the representations made by defendant Anna Mary of her having obtained a decree of divorce in Chicago, when he entered into the purported marriage at Bowling Green, Ohio; that by reason of the invalidity of the divorce proceedings between defendant Anna Mary and Frank Foto, she was incapable of contracting marriage with plaintiff and her pretended marriage to him when she was legally incapable of contracting the same amounted to a fraud; that he would not have transferred the property above mentioned to her had he known her purported marriage to him was a fraud, sham and nullity induced by defendant Anna Mary's conduct; that had he known the fraud practiced by her upon him, he would not have made a property and alimony settlement with her; that she had no right to a property settlement or to alimony. Plaintiff, therefore, asks that an accounting may be had under the direction of the court; a restraining order entered restraining the corporate defendants from paying over any money to defendant Anna Mary, or cashing her checks; and that he may have decree setting aside the pretended marriage settlement made in Florida and recover the property he alleges she fraudulently induced him to transfer to her.

After the filing of the original bill, it was subsequently amended.

Defendant Anna I. Smith (or Anna Mary Foto) moved to dismiss the amended bill of complaint (1) because the court had no jurisdiction for the reason the suit is an attempt to litigate the validity of a property settlement involved in a divorce suit in which a decree was rendered in favor of defendant (as plaintiff) in a court of a foreign jurisdiction having jurisdiction of the subject-matter and of the parties and in which decree of divorce was granted to defendant which in effect ratified and confirmed the property settlement; (2) it appears from the amended bill of complaint the decree of divorce granted defendant from plaintiff in the Florida court is res judicata of the validity of the divorce obtained by defendant Anna Mary from Frank Foto in Wayne county, Michigan; (3) this suit constitutes a collateral attack upon the validity of the decree of divorce granted to defendant from Frank Foto in Wayne county, and said decree is not subject to collateral attack; (4) it appears from the amended bill of complaint that valid service by publication was obtained upon defendant Frank Foto in the divorce proceedings and the decree therein is, therefore, not void and not subject to collateral attack; (5) there is a nonjoinder of parties defendant in that Frank Foto is a necessary party to any proceeding wherein it is sought to adjudicate the validity of the divorce granted in the Wayne county circuit court in chancery to defendant Anna Mary against Frank Foto.

This motion was brought on for hearing in the circuit court for Wayne county and a decree entered therein dismissing plaintiff's bill of complaint. From this decree, plaintiff appeals, claiming (1) the decree is not in proper form for the reason defendant moved the court only for an order to dismiss the amended bill of complaint and the court had no power to make a decree; (2) the court erred in dismissing plaintiff's bill of complaint; (3) the court erred in holding the Florida decree was res judicata as to the validity of the marriage; (4) the court erred in holding the decree of divorce in the case of Foto v. Foto in Wayne county in chancery is not subject to collateral attack for perjury as to jurisdictional facts; and (5) the court erred in holding the affidavit of publication in the case of Foto v. Foto was sufficient on collateral attack.

Under our system of government, one of the essential bases of the union was the provision that full faith and credit should be given by each State to the records, acts and judicial proceedings of every other State. For a decree of divorce to be valid under the full faith and credit clause of the Federal Constitution, it must appear the court rendering it had jurisdiction of the subject matter and of the parties. Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. 464.

Where a wife has acquired a legal domicile in a State prior to making an application for divorce, it is not jurisdictional that the marriage shall have been performed in the State of her acquired domicile; that the grounds for divorce alleged in her bill of complaint should have accrued within the State; that the husband defendant should have been domiciled therein at the time of the filing of her bill of complaint at the time decree was granted, or at any other time. Cheever v. Wilson, 9 Wall. 108, 19 L.Ed. 604.

No faith or credit is to be given to a decree for divorce obtained in a State where neither of the parties thereto is a bona fide resident of the State in which the decree is rendered. Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804;Winston v. Winston, 189 U.S. 506, 23 S.Ct. 852, 47 L.Ed. 922;People v. Dawell, 25 Mich. 247, 12 Am.Rep. 260;Reed v. Reed, 52 Mich. 117, 17 %.n.w. 720, 50 a/m.Rep. 247; Dunham v. Dunham, 162 Ill. 589, 44 N.E. 841,35 L.R.A. 70;Lister v. Lister, 86 N.J.Eq. 30, 97 A. 176.

The Supreme Court of the United States, in Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867,5 Ann.Cas. 1, analyzed and classified the principles governing divorce cases in many of the States.

There could be no valid divorce decree between plaintiff and defendant Anna Mary in Florida unless they were previously married. To be competent to contract marriage between plaintiff and defendant Anna Mary, it was necessary both parties be unmarried at the time such marriage ceremony took place. Defendant Anna Mary having been previously married to Frank Foto, it was necessary she be unmarried,-that the bonds of matrimony which made her the wife of Foto be severed. It is claimed such bonds of matrimony were legally severed by divorce decree obtained by her against defendant Frank Foto. If defendant Anna Mary was divorced from Frank...