Wampler v. Wampler, 29935.

• Citation: 170 P.2d 316,25 Wn.2d 258
• Decision Date: 21 June 1946
• Docket Number: 29935.
• Parties: WAMPLER v. WAMPLER.
• Court: United States State Supreme Court of Washington

170 P.2d 316

25 Wn.2d 258

WAMPLER v. WAMPLER.

No. 29935.

Supreme Court of Washington

June 21, 1946

Department 1

Action by Marie E. Wampler against Kiah Wampler for divorce. From a decree of dismissal, the plaintiff appeals.

Decree reversed with direction that trial court reinstate the action.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

E. P. Whiting and George H. Bovingdon, both of Seattle, for appellant.

Hyland Elvidge & Alvord, of Seattle, for respondent.

MILLARD Justice.

This action was brought by plaintiff to secure a divorce from defendant. Plaintiff alleged the jurisdictional facts marriage of the parties at Tipton. Indiana, June 25, 1940 that there is no issue of the marriage; and cruel treatment on the part of defendant. Her prayer is for restoration of her former name of Marie Ecker and the only affirmative relief sought is divorce. As an affirmative defense defendant pleaded that plaintiff procured a decree of divorce in the Fifth Judicial District of the State of Idaho, and that subsequent to the entry of the decree defendant had remarried. By reply to the affirmative matter plaintiff alleged that she was induced by defendant to proceed to Idaho, remain for a period of approximately two months for the only purpose of complying with the statute of that state in regard to residence and obtain a decree of divorce from defendant; that at all times since her marriage to defendant in 1940 she has been domiciled in the state of Washington. The trial court was of the view that the Idaho decree of divorce was valid; that it could not be attacked collaterally and that plaintiff was estopped from impeaching the decree of divorce entered in her favor in the state of Idaho. All evidence tending to impeach the Idaho decree was stricken. Decree of dismissal of the action was entered. Plaintiff appealed.

The facts are as follows: Appellant and respondent were married at Tipton, Indiana, June 25, 1940 when appellant was domiciled in Indiana and respondent was domiciled in Washington. Immediately following their marriage they became residents of Seattle where they have at all times subsequent to their marriage been domiciled. Respondent became a major in the United States Army and was stationed at Fort Lewis. On April 9, 1943 he was a party to a bigamous marriage ceremony at Portland, Oregon, in which Alma Palmer was the bride. May 8, 1943 a child was born to respondent and Miss Palmer. When in January 1944 respondent was transferred to Virginia, Miss Palmer and their child accompanied him. In March 1944, on the return of that couple from Virginia to this state they expected the birth of another child. Appellant was induced by respondent to go to Idaho and remain there for a period of six weeks and then obtain a divorce. Appellant remained in Idaho eight weeks, and brought suit for divorce against respondent, who in writing, acknowledged receipt at Fort Lewis of a copy of the summons and complaint which was filed with the county clerk for the county of Bannock in the state of Idaho July 22, 1944. A demurrer signed by the respondent and filed the same day, was withdrawn and consent given for hearing of the action without further notice and waiving all rights under the Soldiers' and Sailors'Civil Relief Act, 50 U.S.C.A.Appendix, § 501 et seq. A default decree of divorce, reading as follows, was entered July 31, 1944:

'In The District Court Of The Fifth Judicial District Of The State Of Idaho, In And For The County Of Bannock

'Marie Ecker Wampler, Plaintiff,

v.

Kiah Wampler, Defendant.}

Decree Of Divorce

'This cause came on regularly to be heard and tried Before the Hon. L. E. Glennon, one of the Judges of the above entitled Court, in Chambers, at Pocatello, Idaho, on the 31st day of July, 1944, the plaintiff appearing in person and by her attorneys, Jones, Pomeroy & Jones, and the defendant appearing neither in person nor by counsel. It appearing to the Court that the defendant has been duly and regularly served with process in said action, and has been duly summoned to answer the plaintiff's complaint on file herein; and that the defendant filed a Demurrer in the above entitled action, and thereafter withdrew the same, and refused to plead further in said action, and consented that the above entitled action be set down for trial without further notice to him, and that the default of the defendant in the premises has been duly entered herein.

'Evidence was offered and received for and on behalf of the plaintiff in support of the allegations of her complaint, from which it appears that each and every of the allegations of the complaint are true and such are found to be the facts;

'Now, Therefore, The law and the evidence being by the Court understood and considered,

'It Is Ordered, Adjudged And Decreed That the bonds of matrimony now existing between the plaintiff, Marie Ecker Wampler, and the defendant, Kiah Wampler, be, and the same are, hereby absolutely dissolved and each of the parties is hereby restored to the status of a single person.

'It Is Further Ordered, Adjudged And Decreed That the following described property, to-wit:

'Defense Bonds of the fact value of $225.00

'U. S. Treasury Bonds standing in the name of Marie Ecker, of the fact value of approximately $7500.00.

'32 Shares of the capital stock of the Citizens National Bank of Linton, Indiana.

'Life insurance policy insuring the life of the plaintiffs, said policy having been issued by Bankers Life Insurance Company of Des Moines, Iowa, in the principal sum of $2,500.00.

'One 1940 Pontiac Coupe Automobile

'Furniture, fixtures and household furnishings of the approximate value of $1,000.00.

'An undivided one-half interest in an apartment house located at Linton, Indiana. be and the same is, hereby awarded to the plaintiff, Marie Ecker Wampler, as her sole and separate property.

'It Is Further Ordered, Adjudged And Decreed That the former name of the plaintiff, to-wit: Marie Ecker, be, and the same is hereby restored to her.

'Dated this 31st day of July, 1944.

'L. E. Glennon

'District Judge'.

Immediately after obtaining the decree of divorce in the state of Idaho, appellant returned to this state where she is still domiciled. Since the entry of the Idaho decree appellant has used the restored name of Marie Ecker under which she transferred property and brought an action against respondent and his reputed wife for recovery of money claimed to be due to her from respondent. The day following the entry of the Idaho default divorce decree respondent and Alma Palmer were parties to a marriage ceremony at Bremerton. Four months later another child was born to that couple.

Respondent contends that the judgment roll of a sister state, which is fair on its face, is not subject to impeachment in a collateral proceeding in this state. Respondent further argues that a person who obtains a decree of divorce in a sister state is estopped to impeach or collaterally attack such decree where the other party to the decree has married another in reliance upon the decree and a child has been born subsequent to that marriage and another child legitimated by such marriage, where the party obtaining the foreign decree has also acted in reliance upon it.

Appellant contends that the decree of divorce entered by the Idaho court is void, hence is subject to collateral attack in the courts of this state, for the reason that the Idaho court did not have jurisdiction to grant a divorce in the action instituted by her, in that neither appellant nor respondent was ever a resident of Idaho.

We held in Mapes v. Mapes, Wash., 167 P.2d 405, that proof of residence is essential and a divorce obtained with the aid of an assumed residence is not in good faith and does not give the court jurisdiction of the case. The question whether the courts of this state may inquire into the facts relative to the residence or domicile of appellant and respondent at the time the former sought a divorce in the state of Idaho is foreclosed.

The Constitution of the United States, Art. 4, § 1, provides that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.

'Where a judgment rendered in one state is challenged in another, a want of jurisdiction over either the person or the subject matter is of course open to inquiry.' Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 342, 85 L.Ed. 278, 132 A.L.R. 1357.

A collateral attack upon the jurisdiction of the court of a sister state to render the judgment offered in evidence, in an action brought in another state, is not precluded by the provision of the federal constitution which requires that full faith and credit shall be given in each state to the judicial proceedings of every other state. To give courts of a state jurisdiction over a marriage relation between husband and wife, one of the parties at least must have a domicile within the state. Mapes v. Mapes, supra; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366.

A decree of a sister state or a foreign court, void for want of jurisdiction over the subject matter of the action or the parties to the action, may be collaterally attacked in the courts of this state in any proceeding instituted in this state. The record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction. If it be affirmatively shown that such facts did not exist the record will be a nullity notwithstanding the recital that they did exist. Dormitzer v. German Savings & Loan Society, 23 Wash. 132, 62 P. 862; German Savings & Loan Society v. Dormitzer, 192 U.S 125, ...