Smith v. Smith

• Court: Supreme Court of Connecticut
• Writing for the Court: Before HOUSE; COTTER; In this opinion HOUSE; BOGDANSKI
• Citation: 174 Conn. 434,389 A.2d 756
• Parties: Louise G. SMITH v. Delavan Palmer SMITH.
• Decision Date: 21 March 1978

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389 A.2d 756 174 Conn. 434 Louise G. SMITH
v.
Delavan Palmer SMITH. Supreme Court of Connecticut. Argued Oct. 12, 1977.
Decided March 21, 1978.

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[174 Conn. 435] Robert V. Cimmino, New Milford, and, of the New York and Florida bars, Martin J. Gersten, New York City, with whom, on the brief, was Jacob B. Gersten, New York City, of the New York bar, for the appellant (plaintiff).

John P. Febbroriello, Torrington, with whom, on the brief, was Peter C. Herbst, Canaan, for the appellee (defendant).

Before [174 Conn. 434] HOUSE, C. J., and COTTER, LOISELLE, BOGDANSKI and LONGO, JJ.

[174 Conn. 435] COTTER, Associate Justice.

The defendant filed a plea in abatement in the plaintiff's action for a dissolution of marriage, alimony, attorney's fees and other equitable relief, claiming that the court was without jurisdiction because the marriage had been dissolved by a judgment of divorce granted by the Supreme Court of the State of New York. In her answer and special defense to the defendant's plea, the plaintiff challenged the validity of the New York judgment claiming lack of notice and alleging that it "was obtained by fraud, collusion, perjury and/or material misrepresentations" of the defendant. The trial court sustained the defendant's plea in abatement, dismissed the plaintiff's action, and the plaintiff has appealed.

The finding, which is not subject to material correction, reveals the following: The parties were married in Georgia in 1967 and subsequently moved to West Cornwall, Connecticut, where they resided in 1971. On January 8, 1973, they separated and the plaintiff moved to 269 West 72nd Street in New York City; later she moved, on January 31, [174 Conn. 436] 1973, with the defendant's knowledge, to 170 Thompson Street in New York City; and thereafter the defendant failed in all attempts to locate her. On April 10, 1974, the defendant filed an action for divorce

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in New York; notice of the action was given by publication in the Poughkeepsie Journal and by mail to the West 72nd Street address. The plaintiff filed this action on May 22, 1974, and abode service was made upon the defendant at the West Cornwall address. On June 12, 1974, the defendant testified before the New York court that he had no knowledge of any pending actions for divorce in any other state and that he was, and had been since July of 1971, a resident of New York state. An ex parte divorce was granted to him on June 14, 1974, by the New York court.

The basis of the plaintiff's collateral attack upon the New York judgment was that the foreign divorce was obtained by the defendant's fraudulent statements "and/or material misrepresentations" to that court regarding his New York residency, his lack of knowledge of the suit instituted by the plaintiff in Connecticut, and his inability to ascertain the plaintiff's whereabouts, which fact resulted in her failure to receive notice of the proceedings to which she was a party. From the facts found, the trial court concluded that the plaintiff had not sustained her burden of proving the invalidity of the New York decree; the court therefore ruled that the New York judgment was entitled to full faith and credit, sustained the plea in abatement and dismissed the plaintiff's action.

A valid final judgment or decree of divorce entered by the New York court having jurisdiction to do so is entitled to full faith and credit. U.S. [174 Conn. 437] Const. Art. IV, § 1; 28 U.S.C. § 1738 (as to manner of proof); Johnson v. Muelberger, 340 U.S. 581, 585, 71 S.Ct. 474, 95 L.Ed. 552; Spalding v. Spalding, 171 Conn. 220, 225, 368 A.2d 14; see annot.,28 A.L.R.2d 1303. Proper notice to the defendant, either by personal service of process or, if she is a nonresident, by publication or other constructive service as required by New York law, is essential to give the New York court jurisdiction to grant a valid divorce so as to entitle its decree to full faith and credit in Connecticut. Thompson v. Thompson, 226 U.S. 551, 562-63, 33 S.Ct. 129, 57 L.Ed. 347; Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Gildersleeve v. Gildersleeve, 88 Conn. 689, 695, 92 A. 684; 24 Am.Jur.2d, Divorce and Separation, §§ 947-950. The judgment is conclusive upon the merits in another state only if the first state had power to pass on the merits, that is, had jurisdiction to render the judgment. Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 89 L.Ed. 1577, rehearing denied, 325 U.S. 895, 65 S.Ct. 1560, 89 L.Ed. 2006. Although the plaintiff alleges that the decree was obtained by the defendant's "fraud and/or misrepresentations" which induced the New York court erroneously to believe that it had jurisdiction, the validity of that judgment is dependent upon the jurisdiction of the court and not upon the independent ground of perjury or fraud, except as it might affect the New York court's jurisdiction to render a decree. See Finn v. Employers' Liability Assurance Corporation, 141 So.2d 852 (La.App.); 24 Am.Jur.2d, Divorce and Separation, §§ 480, 957.

Under the full faith and credit clause, our review of the New York court's jurisdiction is somewhat restricted in that we are under a duty to accord [174 Conn. 438] prima facie validity to a divorce decree of a foreign state; Esenwein v. Commonwealth, 325 U.S. 279, 280, 65 S.Ct. 1118, 89 L.Ed. 1608; since a judgment presumes jurisdiction over the subject matter and over the persons. Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146. To overcome this presumption, the burden of undermining the decree of a sister state "rests heavily upon the assailant." Cook v. Cook,supra, 128, 92 S.Ct. 157; Williams v. North Carolina, supra, 325 U.S. at 234, 65 S.Ct. 1092. The trial court in the present action concluded that the plaintiff did not sustain her burden of proving that, at the institution of the New York proceedings, the defendant had not satisfied the one-year residency requirement essential for the New York court to

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obtain jurisdiction to dissolve the marriage. ¹ Spalding v. Spalding, supra; White v. White, 138 Conn. 1, 8, 81 A.2d 450. As the trier of facts, the trial court must determine what facts have been proven; Cappiello v. Haselman,154 Conn. 490, 491, 227 A.2d 79; and its conclusions [174 Conn. 439] which are logically supported by the finding must stand. Freccia v. Martin, 163 Conn. 160, 164, 302 A.2d 280.

The plaintiff claims that in 1973 the defendant resided in West...