Wright v. Wright

• Citation: 165 S.W.2d 870,350 Mo. 325
• Decision Date: 12 November 1942
• Docket Number: 38244
• Parties: Irene Wright v. C. E. Wright, Appellant
• Court: United States State Supreme Court of Missouri

165 S.W.2d 870

350 Mo. 325

Irene Wright v. C. E. Wright, Appellant

No. 38244

Supreme Court of Missouri

November 12, 1942

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Affirmed.

Haymes & Dickey for appellant.

(1) Defendant's motion to strike out all of plaintiff's answer beginning with the second paragraph thereof should have been sustained because: (a) The answer constituted a collateral attack upon the judgment of the district court of Nevada. Cases under (2) and (2)a. (b) The answer did not allege facts showing fraud in the procurement or concoction of said judgment. Wm. H. Johnson Timb. & R. Co. v Belt, 329 Mo. 515, 46 S.W.2d 153; Crowley v Behle, 131 S.W.2d 383; Hanna v. Hanna, 224 Mo.App. 1142, 32 S.W.2d 125; Nichols v. Stevens, 123 Mo. 96; Cases under (3). (c) The answer sought to relitigate the fact issues adjudicated by said district court. Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; And other cases under (4). (d) The answer admitted notice and did not plead equitable defenses or ask for equitable relief. Citizens Trust Co. v. Going, 288 Mo. 505, 232 S.W. 996; Williams v. Reid, 37 S.W.2d 537; Jacobs v Waldron, 317 Mo. 1133, 298 S.W. 773. (2) Since this proceeding was instituted by motion of the defendant in the maintenance action and is not an independent action in equity instituted by the plaintiff to set aside the Nevada judgment, her attack upon the Nevada judgment was collateral. Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Craine v. Deacon, 253 S.W. 1068; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142; Barrett v. Barrett, 79 S.W.2d 506; 7 Words and Phrases (Perm. Ed.), pp. 578-582; Sisk v. Wilkinson, 305 Mo. 328, 265 S.W. 536; Truesdail v. McCormick, 126 Mo. 39; Howey v. Howey, 240 S.W. 450; Cases under (2) supra; First Natl. Bank v. Bowman, 322 Mo. 654, 15 S.W.2d 842; Hemphill Lumber Co. v. Arcadia Timber Co., 52 S.W.2d 750; Inter-River Drain. Dist. v. Henson, 99 S.W.2d 865; Howey v. Howey, supra. (a) Plaintiff's attack being collateral, the validity of the Nevada judgment must be tried by the judgment roll alone and that judgment may not be impeached by the extraneous evidence. (3) The District Court of Nevada is a court of general jurisdiction; and if plaintiff's attack upon that court's judgment be considered as not collateral but direct, the evidence introduced by her was wholly insufficient to show fraud in the procurement or concoction of said judgment, and the court's denial of its validity was against the law and the evidence. Peters v. Schultz, 300 Mo. 324, 254 S.W. 182; Emerson-Brantingham Imp. v. Montgomery, 300 S.W. 538; Wagoner v. Wagoner, 306 Mo. 241, 267 S.W. 654; Howey v. Howey, 240 S.W. 450, certiorari denied, 260 U.S. 730, 67 L.Ed. 485; Keena v. Keena, 222 Mo.App. 825, 10 S.W.2d 344; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; Craine v. Deacon, 253 S.W. 1068; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Anthony v. Rice, 110 Mo. 223; Niemann v. Niemann, 127 S.W.2d 34; Elliott v. McCormick, 323 Mo. 263, 19 S.W.2d 654; Coffey v. Coffey, 71 S.W.2d 141; Blass v. Blass, 194 Mo.App. 624, 186 S.W. 1094; McDonald v. McDaniel, 242 Mo. 172; Shemwell v. Bates, 264 Mo. 268. (a) Plaintiff's pleadings and evidence related only to alleged false swearing and showed no fraud of any kind. Lieber v. Lieber, supra; Crane v. Deacon, supra; Howey v. Howey, supra. (b) The burden of proving fraud upon the court and the plaintiff, in the procurement or concoction of the Nevada judgment, was upon the plaintiff and she failed to discharge that burden. A judgment is always presumed to be valid and, even in equity, can be overturned for fraud only on proof so clear, strong, cogent and convincing as to leave no room for reasonable doubt in the mind of the court. Keena v. Keena, supra; Niemann v. Niemann, supra; Wuelker v. Maxwell, 70 S.W.2d 1100; Elliott v. McCormick, supra. (4) The residence or domicile of the defendant in the State of Nevada was an issue before the District Court by the pleadings and evidence and that court's finding and judgment on the issue after due notice to the defendant in that cause are res adjudicata and cannot be relitigated by this plaintiff. Crow v. Crow-Humphrey, 335 Mo. 636, 73 S.W.2d 807; Howey v. Howey, 240 S.W. 450; Richardson v. Stowe, 102 Mo. 33; Reger v. Reger, 316 Mo. 1310, 293 S.W. 414; Craine v. Deacon, 253 S.W. 1068; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Hockenberry v. Cooper State Bk., 338 Mo. 31, 88 S.W.2d 1031; Peters v. Schultz, 300 Mo. 324, 254 S.W. 182; Kolakowski v. Cyman, 285 Mich. 579, 281 N.W. 330; 2 Freeman on Judgments (5th Ed.), sec. 1073, p. 2233; 3 Freeman on Judgments (5th Ed.), sec. 1437, pp. 2961-2; Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565; Blass v. Blass, 194 Mo.App. 624, 186 S.W. 1094; McDonald v. McDaniel, 242 Mo. 172; Shemwell v. Bates, 264 Mo. 268; McCormick v. McCormick, 107 P. 546. (a) A judgment of a competent court can be set aside only for extrinsic fraud, fraud outside of the issues actually adjudicated. Craine v. Deacon, supra; Wm. H. Johnson Timber & R. Co. v. Belt, 329 Mo. 515, 46 S.W.2d 153; Howard v. Scott, 225 Mo. 685, 125 S.W. 1158; Hockenberry v. Cooper State Bk., supra; Peters v. Schultz, supra; Continental Natl. Bank v. Holland Banking Co., 66 F.2d 823; Chamblin v. Chamblin, 27 P.2d 1061. (b) Defendant's divorce judgment is valid in Nevada, he having fully complied with the laws of that state as to residence or domicile. Domicile is solely a question of intention and the length required is purely statutory; and defendant's testimony in the Nevada divorce trial on that issue, introduced by the plaintiff herein, stands uncontradicted in this record and is binding on her. Reger v. Reger, supra; Stone v. Stone, 134 Mo.App. 242; Wagoner v. Wagoner, 306 Mo. 241, 267 S.W. 654; Williamson v. Osenton, 232 U.S. 619, 58 L.Ed. 758; Finley v. Finley, 6 S.W.2d 1006; Walton v. Walton, 6 S.W.2d 1025; Nolker v. Nolker, 257 S.W. 798; Goodloe v. Hawk, 113 F.2d 753; Restatement of the Law, Conflict of Laws, Mo. Annot., sec. 113. (5) The Nevada judgment terminated the marriage relations between the plaintiff and defendant and under the pleadings and evidence he was entitled to relief from the Greene County maintenance decree, either from the date of his divorce or from and after the time of filing his motion therefor on May 26, 1942. Prichard v. Prichard, 189 Mo.App. 470, 176 S.W. 1124; Keena v. Keena, 222 Mo.App. 825, 10 S.W.2d 344; McCullough v. McCullough, 168 N.W. 929; Miller v. Miller, 206 N.W. 262; 27 C. J. S., p. 1000. (a) Maintenance and alimony decrees remain subject to termination or modification for cause and the termination of said maintenance decree would not deprive the plaintiff of any property right. Prichard v. Prichard, supra; Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066; McCullough v. McCullough, supra; Secs. 1519, 3376, R. S. 1939. (6) The Nevada judgment granting the defendant a divorce was entitled to full faith and credit in Missouri, either under the Constitution of the United States or under established rules of comity. Gould v. Crow, 57 Mo. 200; Howard v. Strode, 242 Mo. 210, 225, 146 S.W. 797; Williams v. Williams, 53 Mo.App. 617; Howey v. Howey, 240 S.W. 450; Wagoner v. Wagoner, 306 Mo. 241, 267 S.W. 654. (a) The judgment of the Nevada Court is entitled to the same respect Missouri accords her own judgments, and divorce judgments are no exception. Howey v. Howey, 240 S.W. 450; Keena v. Keena, 222 Mo.App. 825, 10 S.W.2d 344; Citizens Bank & Tr. Co. v. Moore, 263 S.W. 531; Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142. (b) A divorce action is a proceeding in rem only and the res is the subject of the action. State v. Terte, 345 Mo. 95, 131 S.W.2d 587; Howard v. Strode, supra; Gould v. Crow, supra; Coffey v. Coffey, 71 S.W.2d 141.

Roscoe C. Patterson for respondent.

(1) Defendant's motion to modify the maintenance judgment is in the nature of an independent proceeding, and the motion is treated as a petition in an original action. North v North, 100 S.W.2d 582; Steele v. Steele, 85 Mo.App. 224; Hemm v. Juede, 153 Mo.App. 539; Tossier v. Tossier, 33 S.W.2d 995; Fernbaugh v. Clark, 163 S.W.2d 999. (2) The full faith and credit clause of the Federal Constitution was not violated by the refusal of the circuit court to give effect to the decree of divorce rendered by the District Court of Washoe County in the State of Nevada, in a proceeding instituted by defendant herein, who temporarily left his home at 614 St. Louis Street in the City of Springfield, Missouri, where he was domiciled for the purpose of obtaining a divorce in Nevada, for an alleged cause which occurred in Missouri before the rendition of the maintenance judgment, and whose marital status had recently before been adjudicated by a Missouri court of competent jurisdiction on the same state of facts. Wagoner v. Wagoner, 229 S.W. 1064; Ledum v. Ledum, 276 P. 674; Haddock v. Haddock, 201 U.S. 563, 26 S.Ct. 525, 50 L.Ed. 867; Barber v. Barber, 62 U.S. 582, 16 L.Ed. 226; Parker v. Parker, 222 F. 191; Bell v. Bell, 181 U.S. 175, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 47 L.Ed. 336; 27 C. J. S., sec. 332, p. 1290, and authorities cited under Point (3). (3) The District Court of the State of Nevada was without jurisdiction of the subject matter. No valid divorce from the bonds of matrimony can be decreed on constructive service, or on service of process outside of the state, by the courts of the state in which neither party is domiciled, and the fact that one of the spouses has simulated a residence for the purpose of obtaining a divorce may be shown by extraneous evidence even though it contradicts the judgment. Wagoner v. Wagoner, 229 S.W. 1064; Bethune v. Bethune, 105 A. L. R. 814, 94 S.W.2d 1043; Bell v. Bell, 181 U.S. 175, 45 L.Ed. 804, 21...