Opinion
No. 37586
Decided March 20, 1963.
Divorce and alimony — Action in foreign court — Service by publication — General appearance entered by filing answer — Estoppel — Res judicata.
Where a divorce decree in favor of a husband is rendered in an action for divorce only, service of summons by publication having been made on the wife residing in another state and she having filed an answer by way of general denial and thereby entering her general appearance, she is estopped in a subsequent suit to litigate matters which she might have litigated in the former suit.
CERTIFIED by the Court of Appeals for Summit County.
Evalena Wood and Grover Wood were married in 1958. Upon their marriage they left Akron and went to Florida to reside. Thereafter Wood purchased Florida real property. He continued to own a house and lot in Akron, which he had purchased prior to the marriage. Shortly after going to Florida, Mrs. Wood returned to Akron. Wood remained in Florida.
In December 1960, Wood, in the Circuit Court of Pinellas County (St. Petersburg), Florida, instituted an action for divorce only against Mrs. Wood. Service was had by publication. A copy of the notice of suit for divorce was sent to Mrs. Wood by registered mail from the court in Florida.
On January 11, 1961, Mrs. Wood brought an action for divorce and alimony against Wood in the Common Pleas Court of Summit County, Ohio. The alimony sought was a parcel of real property in Summit County, Ohio, which was described in her petition. Service was had on Wood by publication.
On January 11, 1961, Mrs. Wood filed an answer by way of general denial in the action in Florida. No affirmative relief was asked. The answer was sent by mail to the Clerk of Courts of Pinellas County, Florida. She did not appear there personally or by way of deposition or by attorney. A decree of divorce was thereafter granted to Wood on February 14, 1961.
On February 8, 1961, prior to the granting of the divorce to Wood, his counsel, by motion, such counsel appearing only for that purpose and not generally, asked the Common Pleas Court of Summit County, Ohio, to dismiss the action instituted by Mrs. Wood, on the ground that she, by filing a general denial in the action in Florida, entered her appearance for all purposes and submitted to the jurisdiction of the Florida court all matters pertaining to the marriage of the parties.
On September 14, 1961, the court in Summit County sustained the motion of the defendant to dismiss the petition for want of jurisdiction, and the same was dismissed with prejudice.
The Summit County court in its journal entry stated:
"* * * that the Circuit Court of Pinellas County, Florida, had jurisdiction of the subject matter and the parties therein, and the divorce decree rendered by that court adjudicated all matters between the parties therein and hereto, and the present action commenced by the plaintiff [Mrs. Wood] is therefore, res adjudicata."
The soundness of that decree was challenged in the Court of Appeals. Such decree was affirmed by that court.
Mr. Harold D. Parker, for appellant.
Mr. Anthony Kazlouskas, for appellee.
The ultimate question in this case is whether, where an answer by way of general denial is filed by a wife in an action brought by her husband for divorce in a foreign jurisdiction, an action for alimony, brought by the wife in her domicile against the husband, survives the adjudication made in the domicile of the husband, whereby he was granted a divorce from his wife.
This question was touched upon by this court in 1954 in the case of Armstrong v. Armstrong, 162 Ohio St. 406, the syllabus of which reads:
"1. A divorce decree obtained against a nonresident defendant solely upon service by publication, where such service is authorized in the state granting the divorce, is entitled, under Section 1, Article IV of the Constitution of the United States, to full faith and credit elsewhere, providing such service meets the requirements of due process and the plaintiff at the time of instituting the divorce proceeding was legally domiciled in the state granting the divorce.
"2. Such a divorce decree in favor of a husband, based solely on service by publication on the wife residing in another state, does not, as to a denial of alimony therein, operate extraterritorially and is not entitled to full faith and credit in such other state."
In the opinion by Zimmerman, J., at page 410, it is stated:
"But may a divorce decree secured by a husband even in the so-called matrimonial domicile, where service of summons on the wife, then residing in another state, has been by publication only, deny the wife any right to alimony, so that such denial must be recognized as conclusive in another jurisdiction? We do not think so.
"We would approve the rule that such a decree as it concerns the denial of alimony to the wife is not entitled to full faith and credit in another state. A decree of that kind is one in personam and requires either an appearance by, or lawful personal service on, the wife, in order to have extraterritorial effect."
The distinguishing fact in the Armstrong case was that the nonresident wife made no appearance in the Florida divorce action. In the instant case, the filing of an answer in the Florida court by Mrs. Wood, without any reservations, constituted a general appearance therein, whereby she submitted her person to the jurisdiction of the court. Gorey v. Black, 100 Ohio St. 73; Russell v. Drake, 164 Ohio St. 520. This rule as to a general appearance being made by filing an answer obtains in Florida also. 3 Florida Jurisprudence, 8, Appearances, Section 10; and 10 Florida Jurisprudence, 491, Divorce, Separation and Annulment, Section 80.
Our conclusion is that, where a wife, who is sued for divorce by her husband in another state where he has a bona fide domicile, service of process being made by publication upon her, files an answer to the petition of the husband, she thereby enters her general appearance in such foreign court and submits her person to the jurisdiction of that court.
The decree of the Florida court will be accorded full faith and credit by the courts of this state.
Such wife, after the decree of divorce to her husband, she not asking in that action for alimony, cannot thereafter in Ohio, the state of her domicile, maintain an action for alimony against the husband. See Bentz v. Bentz (1961), 171 Ohio St. 535, 539, 540.
Consequently, we are in agreement with the judgment of the Court of Common Pleas and likewise with the judgment of the Court of Appeals in its affirmance.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and GIBSON, JJ., concur.