Toncray v. Toncray

• Decision Date: 12 November 1910
• Citation: 131 S.W. 977
• Parties: TONCRAY v. TONCRAY.
• Court: Tennessee Supreme Court

Page 977

131 S.W. 977

TONCRAY v. TONCRAY.

Supreme Court of Tennessee.

November 12, 1910.

Appeal from Chancery Court, Carter County; Hal H. Haynes, Chancellor.

Suit by Hester A. Toncray against Samuel J. Toncray. From so much of the decree as awards to complainant alimony, defendant appeals. Modified and affirmed.

Dayton Hunter and Campbell & Swan, for appellant. Collins & Tipton, for appellee.

GREEN, J.

The bill in this cause was filed March 19, 1909, in which complainant sought a divorce from the defendant on the grounds of desertion and cruel and inhuman conduct. There was a prayer for alimony, attorney's fees, etc., and to secure the payment thereof the defendant's interest in certain valuable property in Carter county, Tenn., was attached, as the property of a nonresident.

The defendant answered, denying the allegations of the bill, and defending on the merits of the charges brought against him, and also, for further defense, he specially interposed a judgment of divorce by the circuit court of Wise county, Va., together with authenticated copies of the proceedings had in that court, all of which was pleaded as a bar to complainant's suit. The decree of the Virginia court was apparently founded on an alleged willful abandonment of the husband by the wife, upon the testimony of one Stout, who claimed to have knowledge of such fact so deposed. Toncray had resided in Virginia about 12 years at the time of this decree, and had unquestionably established a bona fide domicile there. The matrimonial domicile of the parties, however, was Tennessee. The Virginia decree was rendered November 13, 1905, and granted to Toncray an absolute divorce. It was based upon publication, without service of process upon the wife, or any actual notice to her.

Upon issues thus made, proof was taken in this case, and it should here be said that we think the evidence offered fully sustains the allegations of complainant's bill as to the defendant's cruelty toward, and his desertion of, this wife. He left her penniless with a family of six helpless children about 1893, went to Virginia, and contributed nothing to her support thereafter. Upon her appeal defendant's father helped care for the children. Complainant herself was destitute and frequently an object of county charity. So that, with the Virginia decree out of the way, this is a case in which the court would readily respond to the appeal of the wife, grant her divorce, and afford her such relief as was in its power.

The chancellor held that the Virginia case was valid in so far as it served to dissolve the bonds of matrimony existing between complainant and defendant, but that said decree, rendered without service of process on complainant, notice to her, or appearance by her, did not deprive complainant of her right to sue for alimony in this state, and he gave a decree in her favor for $3,000 for alimony, making proper orders to secure its payment out of the estate of defendant previously impounded by the attachment. Defendant took a special appeal from that portion of the decree adjudging alimony against him, but neither party appealed from that part of the decree holding the Virginia judgment valid, in so far as it otherwise dissolved the marital relation, and an appeal is the only mode of revising errors in divorce proceedings in an appellate court of this state.

It results that we cannot here fully adjudicate the status to be given a foreign divorce obtained on publication alone. In this case that question has been determined by a court of competent jurisdiction. The chancellor's decree respecting this divorce and its status, in so far as it is not appealed from, is final. That decree held the Virginia divorce valid in Tennessee to a particular extent, and to that extent it must be regarded as valid in this court in this case.

The question then presented to us is whether a proceeding for alimony can be maintained by the wife in this state, this being the matrimonial domicile and all the while her domicile, against a husband who had previously obtained from her in a foreign state, upon publication, a divorce a vinculo, which divorce is recognized as valid and binding in so far as it severs the marriage tie. This is merely a suit for alimony in this court, for the chancellor has in effect settled the validity of the divorce for other purposes, and we are without power to review his action in this respect, if we so desired.

There is a conflict of authority in the several states upon the right of the wife to maintain an action of this sort, as there is upon many other questions arising out of divorce litigation. Uniformity of legislation and decision upon this subject is particularly desirable, but at present seems far of accomplishment. Meanwhile, respecting foreign divorces, we think each state should adopt such course as seems most likely to promote the happiness and welfare of its citizens, consistent with a due regard for comity and good morals.

One thing appears now settled, since the decision of the Supreme Court in Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, and that is that no state is bound, under the full faith and credit clause of the federal Constitution, to recognize, as against its citizens, divorces obtained in other states on publication, at a place other than the matrimonial domicile. Haddock v. Haddock is too recent and too familiar to the profession to render any discussion of it profitable here.

Upon the principles of that case, each state is at liberty to determine for itself what effect to give to divorce decrees rendered against its citizens in another state, without personal service of process. So we may, in so far as the federal Constitution is concerned, give to this Virginia judgment full recognition, partial recognition, or no recognition, according as we consider the policy of our state demands.

This was, as has been seen, an ex parte proceeding in Virginia, with no representation of the wife. We think it well, as the chancellor has done in this case, to give certain efficacy to such decrees, to avoid rendering adulterous subsequent marriages of parties so divorced, and to avoid bastardizing children of such marriages. No such reasons of policy and morals restrain us from declining to give efficacy to this sort of foreign judgment in so far as it affects the question of alimony.

It was held in Tennessee at an early date that an ex parte divorce granted by the Legislature of the state did not extinguish the marital relation so as to deprive the wife of her right to obtain alimony through the courts. Richardson v. Wilson, 8 Yerg. 67. No spirit of comity requires us to place an ex parte judgment of a foreign court upon a higher plane than such a judgment of our own Legislature.

Construing our statute (section 4221 of Shannon's Code), this court has said: "Nor is there any necessary connection between divorce and alimony; a divorce may be granted without alimony, and alimony may be granted when no divorce is decreed." McBee v. McBee, 1 Heisk. 558-561. See, also, Nicely v. Nicely, 3 Head, 184; Swan v. Harrison & Morris, 2 Cold. 534.

It thus appears that there is, under our statute, no absolute connection between divorce and alimony. As our courts can decree the one without the other, so, upon principle, we could enforce a foreign decree as to one, and not as to the other. This Virginia decree is silent on the question of alimony, and we might say that it was not the intention of that court to pass on alimony, although we do not mean to be understood as saying we would have given effect to the decree, if it had undertaken so to adjudicate.

There is abundant authority to sustain the chancellor's decree from the courts of other states.

In the new Encyclopædia of Law and Practice, it is stated:

"In general, it may be said that, if a divorce is ex parte, a decree for alimony may be subsequently rendered on the wife's application to the courts of her husband's jurisdiction, or those of her own, if he can be found there and personally served." 3 Enc. L. & P. 75.

The Supreme Court of Minnesota, in a case where a husband domiciled with his wife in that state deserted her, and obtained a divorce from her in another state by constructive service, said, upon the wife's application for alimony:

"The action for divorce in Washington was in the nature of a proceeding in rem. It seized nothing but the marriage status. The only reason why the seizure of that was sufficiently complete to give jurisdiction to condemn and destroy it is because it cannot be severed as to one, without being severed as to both; one cannot remain married when the other becomes single. The court took jurisdiction of nothing else but the marriage status. 2 Bish. Mar. & Div. §§ 169, 170. Nothing else was seized. No property was seized or came in question, and the property in this state could not be so seized.

"Neither the doctrine of res judicata nor estoppel to the parties concerned or interested in a proceeding in rem only so far as it has regard for the thing seized and condemned by the judgment.

"Thus A., claiming the right to the possession of a wagon which B. withholds from him, and finding all of it but the tongue in a state where B. does not reside, brings replevin, and on constructive service on B. obtains judgment for the possession of that part of the wagon. In a subsequent suit between him and B. for the possession of the tongue, B. cannot plead that A. has split his cause of action, and A. cannot plead the adjudication in the first suit. On the contrary, all questions concerning the rights of the parties as to the tongue are res nova. See Plummer v. Hatton, 51 Minn. 181 . Such is the case here; nothing is settled except that the marriage bonds are severed. 2 Bish. Mar. & Div. § 169.

"* * * The claim for alimony in this case is a substantive part of the original controversy. It is not something which is created by, or merely...