Zentzis v. Zentzis

• Decision Date: 23 May 1916
• Citation: 158 N.W. 284,163 Wis. 342
• Parties: ZENTZIS v. ZENTZIS.
• Court: Wisconsin Supreme Court

163 Wis. 342

158 N.W. 284

ZENTZIS

v.ZENTZIS.

Supreme Court of Wisconsin.

May 23, 1916.

Appeal from Circuit Court, St. Croix County; George Thompson, Judge.

Action by Emil G. Zentzis against Christina Zentsiz. Judgment for defendant sustaining a demurrer to the complaint, and plaintiff appeals. Affirmed.

The action is brought to recover an interest in property deeded to defendant by plaintiff while they were husband and wife. After such transfer the defendant secured a divorce from the plaintiff in the state of Montana. The Montana court made no express mention of a final division of the defendant's property, nor did it in any way mention the property rights of the parties arising out of their marital relations.

The plaintiff and defendant were married in 1897, and resided in St. Croix county until the spring of 1912, when they moved to Montana. In 1901 the plaintiff purchased 40 acres of land, and in 1908 another 80 acres. He then transferred the title of the entire 120 acres by deed to the defendant, his wife. In March, 1912, the land was leased to one Olson by the defendant, and the parties moved to Montana. In the year 1914 the defendant secured a divorce from the plaintiff in the state of Montana. The summons and complaint in the divorce action were personally served on the plaintiff within the state of Montana, where the parties then resided. At the time the papers were served on him the plaintiff consulted an attorney of Montana, and was advised that any judgment rendered in the divorce action could not affect the plaintiff's rights and property in Wisconsin. The plaintiff did not appear to defend the divorce action. The Montana court awarded the wife judgment of divorce on the grounds of the failure to support, idleness, and dissipation of the husband, and awarded the custody of the two minor children of the parties to the wife. The judgment, however, is silent in regard to alimony and division and distribution of the husband's property. The circuit court for St. Croix county sustained a demurrer to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action. From such order this appeal is taken.

Jos. W. Singleton, of Eau Claire, for appellant.

Spencer Haven, of Hudson, for respondent.

SIEBECKER, J. (after stating the facts as above).

[1][2] The plaintiff alleges that he has an interest in the farm in question, located in this state, and he asserts the legal right to recover his alleged interest in this land by action independent of the divorce action in the Montana court, wherein a judgment of absolute divorce was awarded upon the complaint of the wife. At the time of the proceeding in the divorce action in Montana the husband and wife were domiciled in that state. The divorce action was commenced by the wife against the husband, the plaintiff in this action, by the service of the summons and complaint on him personally under the law of Montana. After such service of the summons and complaint on him, and his consultation with an attorney of Montana, he did not appear or answer in the action, and the wife, upon her complaint and the evidence adduced by her, was awarded a judgment dissolving the bonds of matrimony and granting her the custody of the two minor children, the fruit of such marriage. There is no provision in such judgment for alimony or for a final division or distribution of the husband's estate.

It is manifest that the Montana court obtained jurisdiction of the parties to the divorce action and of the subject-matter of the action. These facts make the judgment of the Montana court binding on the husband as to all the rights that inhered in and arose out of the marital relations. The husband, the plaintiff in the instant action, being domiciled in Montana when he was served with process in the divorce action, was properly subjected to the process of the Montana court, and is bound by the judgment pronounced against him by that court. Under these facts and conditions a judgment of a sister state must be given faith and credit in Wisconsin under section 1, art. 4, Constitution of the United States. D'Arcy v. Ketchum, 52 U. S. (11 How.) 165, 13 L. Ed. 648;Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

Much reliance is placed on the case of Cook v. Cook, 56 Wis. 195, 14 N. W. 33, 443, 43 Am. Rep. 706, to sustain the contention plaintiff makes in this court that the divorce judgment of the Montana court in no way affected his rights and interests in this farm, because no final division and distribution of real estate in Wisconsin could be awarded by the Montana court, and that such court, in fact, did not attempt to grant such relief. The Cook Case is not an authority on this point. In that case the husband, who resided in Michigan, had secured a judgment of divorce in an action in Michigan against his wife, who resided in Wisconsin. The wife had not been personally served with notice, and did not appear in the action, and was ignorant of the action until after judgment, and it appeared that the husband obtained the judgment upon notice by publication under the Michigan law, based upon affidavits which the husband knew to be false, and upon an alleged cause of action which was false in fact. This court held that the judgment obtained in such a proceeding was not a bar to a subsequent action by the wife for a divorce, alimony, and division of the husband's estate in this state. As declared in the opinion under the citation of Doughty v. Doughty, 28 N. J. Eq. 581:

“A decree in a divorce suit will have no...