Opinion
No. 33956
Decided December 15, 1954.
Divorce and alimony — Service by publication — Divorce decree against nonresident — Entitled to full faith and credit, when — Portion of decree denying alimony — Does not operate extraterritorially — Not entitled to full faith and credit — Section 1, Article IV, U.S. Constitution.
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.
APPEAL from the Court of Appeals for Hamilton County.
This cause is concerned with the subject of divorce and alimony and is here on an appeal as of right and on the allowance of a motion to require the Court of Appeals for Hamilton County to certify its record.
Raymond C. Armstrong, appellant, hereinafter referred to as Armstrong, secured a divorce, upon constructive service of summons, from Mary R. Armstrong, appellee, hereinafter called Mrs. Armstrong, by the decree of a court in Florida. Embodied in the decree was a denial of alimony to her. Subsequently, in February 1952, she sued Armstrong for divorce and alimony in the Court of Common Pleas of Hamilton County, Ohio, claiming that Armstrong had procured his Florida divorce by fraud and misrepresentation. He entered his appearance by way of answer in which he denies many of the allegations of the petition. This was met by reply.
The cause was heard on considerable evidence and both the Armstrongs testified. Mrs. Armstrong was refused a divorce on the basis that Armstrong's Florida decree was conclusive, but she obtained an award of alimony. Such decree was affirmed by the Court of Appeals.
Mrs. Armstrong, in her cross-appeal, complains that she was erroneously denied a divorce in Ohio and the allowance of alimony Pendente lite and expenses, whereas Armstrong contends that she was precluded from obtaining any alimony award in Ohio by reason of his Florida decree, which denies her the right to alimony.
It appears that both parties are natives of Ohio and were married in this state in 1917. They engaged in business here until the early 1920's when they sold the business and removed to Florida. Later, real property was bought on the Isle of Pines, and from 1925 to 1928 the Armstrongs occupied themselves in growing fruit and vegetables there. Then in 1928 they went to the city of Miami, Florida. Residence properties were purchased, into one of which they moved, and they became taxpayers and registered voters of that community.
However, they did not sever their ties with Ohio. Two farms, one in Indiana and one in this state, were purchased and the Armstrongs generally spent the summer months in Ohio looking after their property interests. The title to some of the property accumulated over the years was held jointly, while other property was held by Armstrong individually.
Matrimonial difficulties developed between the Armstrongs, and in the summer of 1948, while they were at their Clermont County, Ohio, farm, an altercation occurred and Mrs. Armstrong departed. She took from a jointly held safety deposit box certain securities owned by Armstrong which she could not negotiate but kept and withdrew the major portion of a sizeable money deposit in a joint bank account. A reconciliation took place in a matter of weeks, and on September 27, 1948, at Ashville, North Carolina, Armstrong signed a written statement in which he assumed some blame for their domestic troubles.
Friction again developed between the Armstrongs, and in October 1950 Mrs. Armstrong left their Miami, Florida, home and returned to Ohio, where she remained.
On April 16, 1951, Armstrong filed suit for divorce in the Circuit Court of Dade County, Florida. Service by publication only was made on Mrs. Armstrong, but she employed an Ohio attorney and actually knew about the proceeding. However, she did not return to Florida and made no appearance in the suit. Subsequently, as has been noted, a decree of divorce was granted Armstrong, wherein Mrs. Armstrong was denied alimony and the title to the Florida real estate was vested in Armstrong. What transpired afterwards has previously been narrated.
Messrs. Headley, Sibbald Taft, for appellee and cross-appellant.
Messrs. Gorman, Silversteen Davis, for appellant and cross-appellee.
From Armstrong's standpoint "the sole question in this case is whether the courts of Ohio, under Article IV of the Constitution of the United States, are compelled to give full faith and credit to the entire decree for divorce rendered in Florida, the matrimonial domicile of the parties, which decree denied alimony to the wife, or whether the courts of Ohio can recognize the decree for divorce to the husband, but still award alimony to the wife."
Of course, Armstrong answers the first part of the question in the affirmative and the latter part in the negative.
In support of his position, Armstrong relies primarily on the case of Thompson v. Thompson, 226 U.S. 551, 57 L. Ed., 347, 33 S. Ct., 129.
In that case it was held that a court in Virginia, the matrimonial domicile of the parties, had jurisdiction to render a decree of divorce in favor of the husband on constructive service of summons on the wife, and that such decree was entitled to "full faith and credit" in the District of Columbia. It was further held that such decree foreclosed any right of the wife to sue for alimony in the District of Columbia for the reason that the holdings of the Virginia courts are that a wife who is the offender can not be allowed alimony on a divorce decree obtained by her husband.
The facts and situation in the Thompson case are not the same as those in the instant case. From a reading of the bill of complaint for divorce filed by Armstrong in the Circuit Court of Dade County, Florida, against his wife, it is plain that he charged her with conduct which in the divorce statutes of this state are termed "extreme cruelty" and "gross neglect of duty." No statute or decision in Florida has been called to our attention which states that a Florida court may not award alimony to a wife divorced by her husband because of her aggression, unless she has committed adultery. See Cowan v. Cowan, 147 Fla. 473, 2 So.2d 869. Compare Fiesler v. Fiesler, 83 Ohio St. 200, 93 N.E. 899.
It may be here interposed that since the decision of the United States Supreme Court in the case of Williams v. North Carolina, 317 U.S. 287, 87 L. Ed., 279, 63 S. Ct., 207, 143 A.L.R., 1273, the factor of "matrimonial domicile" is no longer regarded as important. See annotation, 143 A.L.R., 1294.
The rule of general acceptance is that a divorce decree obtained against a nonresident defendant solely upon constructive service, if such service is authorized in the state granting the divorce, is entitled to full faith and credit elsewhere, providing such constructive 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. Williams v. North Carolina, supra; annotation, 28 A.L.R. (2d), 1306
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. In other words, in a situation of the kind under discussion, that part of the decree granting a divorce may be immutable, but that part which purports to fix alimony rights is not, and alimony may be the subject of adjudication in the court of another state at a future time. What has been said finds sanction in the Ohio cases of Cox v. Cox, 19 Ohio St. 502, 2 Am. Rep., 415; Doerr v. Forsythe, Admx., 50 Ohio St. 726, 35 N.E. 1055, 40 Am. St. Rep., 703; Weidman v. Weidman, 57 Ohio St. 101, 103, 48 N.E. 506, 507; Bay v. Bay, 85 Ohio St. 417, 426, 427, 98 N.E. 109, 110; and Slapp v. Slapp, 143 Ohio St. 105, 54 N.E.2d 153.
Although not directly in point from a factual standpoint, we believe the following cases also lend support to the position we have taken: Estin v. Estin, 334 U.S. 541, 92 L. Ed., 1561, 68 S. Ct., 1213, 1 A.L.R. (2d), 1412; and May v. Anderson, 345 U.S. 528, 97 L. Ed., 1221, 73 S. Ct., 840. And see the concurring opinion of Mr. Justice Douglas in Esenwein v. Pennsylvania, ex rel Esenwein, 325 U.S. 279, 89 L. Ed., 1608, 65 S. Ct., 1118, 157 A.L.R., 1396.
In the case of Pawley v. Pawley (Florida), 46 So.2d 464, 28 A.L.R. (2d), 1358, certiorari denied, 340 U.S. 866, 95 L. Ed., 632, 71 S. Ct., 90, the husband secured a Cuban decree of divorce against his wife, a resident of Florida, on the ground of desertion, which constitutes a ground for divorce in Florida. Personal service of notice of the action was made on the wife in Florida. The Supreme Court of Florida recognized the Cuban decree as valid under the principles of comity but held that the Cuban court did not and could not pass upon the right of the wife to alimony since no personal jurisdiction had been secured over her, and that, therefore, she was not barred from maintaining an action for alimony in Florida.
Consequently, we are in agreement with the judgments of both the lower courts herein. Armstrong's Florida divorce decree dissolved the marriage relation between him and his wife, and Mrs. Armstrong could not thereafter successfully maintain an action in Ohio to have that decree set aside and to obtain a divorce for herself in this state; but the Florida court had no jurisdiction over the person of Mrs. Armstrong and that court could not by its decree effectively preclude her from obtaining an alimony award in Ohio.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, STEWART and LAMNECK, JJ., concur.