Zenker v. Zenker

• Decision Date: 04 November 1955
• Docket Number: No. 33769,33769
• Citation: 72 N.W.2d 809,161 Neb. 200
• Parties: Mary ZENKER, Appellant, v. William M. ZENKER, Appellee.
• Court: Nebraska Supreme Court

Page 809

72 N.W.2d 809

161 Neb. 200

Mary ZENKER, Appellant, v. William M. ZENKER, Appellee.

No. 33769.

Supreme Court of Nebraska.

Nov. 4, 1955.

Syllabus by the Court.

1. This court will take judicial notice of the fact that the bill of exceptions was not settled within the time provided by statute, and therefore cannot be considered on appeal.

2. In the absence of a bill of exceptions it will be presumed that issues of fact presented by the pleadings were established by the evidence, that they were correctly decided, and that the only issue remaining for this court is the sufficiency of the pleadings to support the judgment.

3. Jurisdiction to grant a divorce depends upon the domicile of at least one of the parties being in the state of the forum and a procedural due process over the person of the defendant. If either is lacking, the court has no power to act.

4. An appearance in a divorce suit cannot give validity to a divorce decree where the court does not have jurisdiction of the subject matter, to wit, an actual domicile of one of the parties within the jurisdiction of the court.

5. In a suit for a divorce, jurisdiction of the subject matter and of the person of the defendant must both exist. Proof of one does not supply a defect in the other.

6. A judgment refusing to accord full faith and credit to the divorce decree of a sister state, on the ground that no bona fide domicile was acquired there, does not offend the full faith and credit clause of the federal Constitution where it appears that proper weight was given to the claims of power by the court of the sister state; that the burden of disproving a bona fide domicile in the sister state was properly placed upon the party challenging the validity of the divorce decree; that such issue of fact was determined by appropriate legal procedure; and that the finding as to the absence of a bona fide domicile in the sister state is amply supported by the evidence. This is so even if in the record of the court rendering the divorce decree in the sister state there is warrant for its finding that it had jurisdiction.

7. The full faith and credit clause of the federal Constitution does not operate to make a judgment of a sister state a judgment in this state except where it can be shown that the court purporting to render the original judgment had the necessary jurisdiction to decide it on the merits. The presumption is that the foreign decree, when rendered by a court of general jurisdiction, is valid.

8. Where the record establishes that a bona fide domicile in the state in which a decree of divorce is obtained did not exist, and the service of summons personally on the defendant was obtained by fraud, the court did not obtain jurisdiction of the subject matter or of the person, and the court is without authority to enter a decree which is entitled to full faith and credit in this state.

9. In a proper case, a party may be estopped from collaterally attacking a void judgment induced by his own fraudulent conduct. Such an estoppel may be asserted only by the party injured and those in privity with him.

10. A judgment rendered by a court that did not have jurisdiction of the subject matter, or of the person, is not res judicata of any issue purported to have been raised therein, and it is subject to collateral attack.

11. Personal service of summons, if procured by fraud, trickery, or artifice is not sufficient to give a court jurisdiction over the person thus served. A service of summons upon him through such improper means is invalid.

12. The right of the state of the actual domicile of the parties to control the marital status and domestic relations of its own inhabitants has precedence over the attempt of any other state to interfere therewith, except where jurisdictional requirements have actually been met and the court has thereby acquired power to act.

13. Consent of the parties does not confer jurisdiction of the subject matter upon a court which it otherwise does not have.

14. The final determination of the question as to whether or not a foreign judgment must be given full faith and credit under Article IV, section 1, Constitution of the United States, rests with the Supreme Court of the United States.

Halligan & Mullikin, North Platte, for appellant.

E. H. Evans, Richard W. Satterfield, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CARTER, Justice.

The plaintiff brings this action to secure the registration of a judgment obtained against the defendant in the district court for Denver County, Colorado, in the judgment record of the district court for Lincoln County, Nebraska, and for an order declaring it to be a valid and proper judgment against the defendant and a lien upon property owned by him in Lincoln County. The trial court found that the Colorado court did not have jurisdiction to render a decree of divorce and the money judgment rendered in connection therewith, and dismissed the action. The plaintiff appeals.

We are required to take notice of the fact that there is no proper bill of exceptions filed in this case. In this respect the record shows that plaintiff filed her notice of appeal on December 29, 1954. The initial period for reducing her exceptions to writing was 40 days from the date notice of appeal was filed. Section 25-1140, R.R.S.1943. The trial court extended the time an additional 40 days pursuant to section 25-1140.07, R.R.S.1943. No further extension of time was applied for or granted by the Supreme Court as authorized by section 25-1140.07, R.R.S.1943. The time for reducing the exceptions to writing therefore expired on March 19, 1955. Appellant had 10 days to serve the draft of the bill on the adverse party, as provided by section 25-1140.03, R.R.S.1943. This period ended on March 29, 1955. The appellee then had 10 days to prepare proposed amendments and return the bill to the appellant, as authorized by section 25-1140.04, R.R.S.1943. This period ended on April 8, 1955. The bill must be presented for settlement to the court, or the clerk of the district court in a proper case, within 10 days thereafter. Section 25-1140.05, R.R.S.1943. This period ended on Monday, April 18, 1955. The bill was not settled until April 21, 1955. There is no authority for settling a bill of exceptions more than 110 days after the filing of notice of appeal when an extension of 40 days only has been obtained for the purpose of reducing the exceptions to writing.

In Gernandt v. Beckwith, 160 Neb. 719, 71 N.W.2d 303, 304, this court stated: 'This court will take judicial notice of the fact that the bill of exceptions was not settled within the time provided by statute, and therefore cannot be considered on this appeal.' See, also, Bednar v. Bednar, 146 Neb. 726, 21 N.W.2d 438. We are compelled to hold that there is no bill of exceptions before us which can be considered on this appeal.

In the absence of a bill of exceptions it will be presumed that issues of fact presented by the pleadings were established by the evidence and that they were correctly decided. In such a situation the only issue that will be considered on appeal to this court is the sufficiency of the pleadings to support the judgment. Goger v. Voecks, 156 Neb. 696, 57 N.W.2d 621; Gernandt v. Beckwith, supra.

The petition alleges that in January 1952, the plaintiff instituted an action in the district court for Denver County, Colorado, against the defendant, the object and prayer of which was to obtain a divorce and a proper division of the property owned by the parties. The petition further alleges that personal service of summons was had on the defendant in Denver County, Colorado, but that defendant failed to appear, and on March 7, 1952, an interlocutory decree was entered allowing plaintiff $145 per month as temporary alimony and $250 as attorney's fees. It is further alleged that, after peoper notice to the defendant, a final hearing was held on November 19, 1952, at which a judgment was rendered against the defendant in the sum of $15,669.20, the amount the court found to be plaintiff's share of the jointly accumulated property. The judgment, a copy of which is attached to the petition, shows that defendant was served with summons but had not appeared or answered, that evidence was taken, and the judgment rendered. The prayer of the petition is that the court order the registration of this judgment in Lincoln County and that it be declared to be valid and a lien on defendant's property in that county.

The answer alleges that plaintiff and defendant are husband and wife, that the decree of divorce and judgment procured in Colorado are null and void for the reason that plaintiff never acquired a bona fide domicile in Colorado, that plaintiff at the time of the commencement of the divorce proceeding in Colorado was domiciled in Lincoln County, Nebraska, and that the Colorado court therefore never obtained jurisdiction to grant a valid divorce in that state. The answer alleges further that the statutes of Colorado require a bona fide residence for at least one year in that state prior to the commencement of a divorce proceeding, that plaintiff never had such a domicile in Colorado, and that the court in Colorado therefore never attained jurisdiction to hear and adjudicate plaintiff's petition for a divorce. The defendant admits that he was personally served with summons in Denver County, Colorado, but alleges that such purported service was void for the reason that his temporary presence in Denver County was by reason of enticement thereto by the fraudulent representations of plaintiff that his presence there was required to join in selling and conveying certain real estate in Denver when plaintiff had no intention of so doing, and that such representations were falsely made to procure the presence of the defendant in Denver County for the sole purpose of serving a...