Opinion
23859.
ARGUED DECEMBER 13, 1966.
DECIDED JANUARY 5, 1967.
Alimony. Hall Superior Court. Before Judge Kenyon.
Troutman, Sams, Schroder Lockerman, William H. Schroder, Allen E. Lockerman, Gerald P. Thurmond, Joseph H. Blackshear, Reed Dunn, Robert J. Reed, R. Elliott Dunn, Jr., for appellant.
Westmoreland, Hall Pentecost, John L. Westmoreland, Jr., Robinson, Thompson, Buice Harben, Emory Robinson, for appellee.
1. The notice of appeal from the original judgment after the trial which would be final since it sustained a plea of res judicata based on the ground that all issues by and between the parties had been settled in a Nevada court, having been filed within 30 days of the denial of the motion for new trial and motion for judgment notwithstanding the verdict, no ground to dismiss the appeal is shown and, accordingly, the motion to dismiss is without merit. Code Ann. §§ 6-702, 6-802, 6-803 (Ga. L. 1965, p. 18; 1966, p. 493).
2. The uncontradicted record showing that in his petition and his sworn testimony supporting the same the husband falsely represented to the Nevada court that he was married, and that there was a premarital agreement settling alimony — thus procuring the decree by fraud upon that court —, the decree is void and can be collaterally attacked in the Georgia court.
3. To foreclose the wife's claim to alimony by a decree of a court of another state, it is essential that she have been personally and legally served, or have waived service, or that she appeared and pleaded. Where substituted service of the divorce action is accomplished by publication, mailing copy of the process to the nonresident defendant, and having a private individual hand a copy to the defendant, there is such a total lack of personal service that the defendant's rights cannot be constitutionally adjudicated.
4. Under the present Georgia statute (Ga. L. 1965, p. 263; Code Ann. § 30-226) where the husband obtains a divorce in the courts of another state, wherein the wife was not legally served personally and did not waive service by appearing and pleading, or otherwise, her right to claim alimony remains unimpaired, and the foreign judgment does not constitute res judicata of her alimony claim.
ARGUED DECEMBER 13, 1966 — DECIDED JANUARY 5, 1967.
This is a divorce and alimony case the only phase of which now before the court is the ruling on a plea of res judicata that alleges that a Nevada court having jurisdiction of the same parties and the same subject matter had previously rendered judgment and the parties are now divorced and the decree attacked was a final adjudication of the matter.
The history of the case is a long and lengthy review of the marital difficulties of a husband and wife who had entered into a premarital agreement contemplating divorce — which was executed November 13, 1961. The parties married November 14, 1961. They first separated April 19, 1963. The wife filed for divorce May 30, 1963, but was unable to perfect service on her husband. The husband obtained his first Mexican divorce May 27, 1963. The parties remarried July 10, 1963. On November 8, 1964, they parted company, the husband claiming a separation as of that date, the wife as of November 18, 1964, when she found herself locked out after returning from a trip to the West. The husband flew to Mexico and filed for his second Mexican divorce on December 15, 1964. The wife sought to serve her divorce and alimony suit (this case) on her husband at his alleged residence in Hall County on December 28 and 29, 1964, without success, he being locked in the premises behind the protection of two huge dogs. On December 31, 1964, he departed this state for the western part of the United States. On January 14, 1965, he sought to establish his residence in the State of Nevada. His second Mexican divorce became final on January 15, 1965. His wife received notification of his second Mexican divorce February 3, 1965. On March 10, 1965, he filed for divorce in Nevada. On March 18, 1965, a private individual handed the Nevada process to her in Atlanta, Ga. He was granted a divorce on April 8, 1965, by the Nevada court, without any appearance of the wife, with service by publication and the personal handing of the divorce papers to her in Atlanta. On May 31, 1965, his attorneys filed the special plea of res judicata to the wife's divorce and alimony case in Hall County, and after a trial of the issue therein, a verdict and judgment was returned in his favor. Thereafter, motions for new trial and for judgment notwithstanding the verdict in accordance with a previous motion for directed verdict were filed, heard and overruled. The final decree sustained the plea, and the appeal is from this ruling. The enumerations of error cover ancillary rulings made during the trial, the final judgment, and the motions made for a new trial and for judgment notwithstanding the verdict in accordance with the motion for directed verdict previously made.
The first headnote requires no further elaboration since the appeal is not subject to the motion to dismiss under the new Appellate Practice Act of 1965, as amended.
The verdict and judgment sustaining the husband's plea of res judicata to the wife's action for divorce and alimony is assailed upon the following grounds: (1) The judgment of the Nevada court upon which the plea is based was procured by fraud; (2) it does not bind the wife as to alimony since she was neither personally served nor did she appear in said court; and (3) under Georgia law (Ga. L. 1965, p. 263; Code Ann. § 30-226) the wife is entitled to alimony despite the divorce decree in favor of her husband in Nevada.
1. We consider these attacks in the foregoing order. The uncontradicted evidence shows that the petition in the Nevada court alleged and the husband swore that he and the appellant were at the time of filing and of the trial of that case, husband and wife; that he knew at that the time that he had procured a divorce from her in Mexico; consequently, his allegations and testimony were knowingly false, and that without them the court would not have granted him a divorce. He also falsely alleged and testified that he and appellant had entered into a premarital agreement settling his liability to her for alimony knowing at the time no such agreement was made in reference to his second marriage to her and that after the only such agreement was executed, the parties were divorced and sometime thereafter remarried. He is also charged with knowledge of the law ( Reynolds v. Reynolds, 217 Ga. 234 ( 123 S.E.2d 115)) that all such premarital agreements in Georgia are against public policy and are void. These combined indisputable facts in this record show that the judgment pleaded as res judicata was procured by the wilful perpetration of fraud upon the court rendering it. In this situation, the ruling in Marchman v. Marchman, 198 Ga. 739 ( 32 S.E.2d 790), is controlling authority for the trial court to ignore that judgment and grant appellant's motion for judgment notwithstanding the verdict. The Marchman case ruled that the full faith and credit clause of the Constitution and the statute enacted pursuant thereto (see 28 U.S.C.A. § 1738) have no application to such cases and that the decree "is subject to a collateral attack." We need not repeat here the view of many cases cited therein including Williams v. North Carolina, 317 U.S. 287 ( 63 S.C. 207, 87 LE 279, 143 ALR 1273). The undisputed evidence shows that the judgment relied upon was procured by the perpetration of wilful fraud upon the court and is therefore void.
2. But it is contended that the wife was personally served because copies of the suit were mailed to her, and an individual, not an officer, handed her a copy of the suit. We think this court's ruling in Cochran v. Cochran, 173 Ga. 856 ( 162 S.E. 99), requires a rejection of that contention. It was there said at page 865, that, "we have not overlooked the fact that there was a physical service or pretended service in the case on Mrs. Cochran in Murray County, Georgia, but of course this constituted no personal service whatever. Underwood v. Underwood, 142 Ga. 441 ( 83 S.E. 208, LRA 1915B, 674)." This ruling was followed in Adams v. Adams, 191 Ga. 537 ( 13 S.E.2d 173). Also the Supreme Court in Vanderbilt v. Vanderbilt, 354 U.S. 416, 418 ( 77 S.C. 1360, 1 L.Ed.2d 1456) held that, "It has long been the constitutional rule that a court can not adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant. Here, the Nevada divorce court was as powerless to cut off the wife's support right as it would have been to order the husband to pay alimony if the wife had brought the divorce action and he had not been subject to the divorce court's jurisdiction. Therefore, the Nevada decree, to the extent it purported to affect the wife's right to support, was void and the Full Faith and Credit Clause did not obligate New York to give it recognition." To the same effect see 27B CJS 819, Divorce, § 346. Relevant here is the fact that the Nevada decree did not even attempt to pass upon the matter of alimony for the reason stated in that decree. In such a case the rule of law applicable is stated in 24 AmJur2d 1128, Divorce, § 991, as follows: "And where a foreign decree, entered in an action brought by the husband with constructive service on the nonresident wife, refused to pass upon the wife's right to alimony, the full faith and credit clause does not preclude the courts of another state from awarding alimony in a subsequent action." At page 1128, § 992, it is stated that: "the divorce court must have jurisdiction of the wife in personam in order to adjudicate or cut off her right to alimony." The Code of Georgia, § 3-607, declares that res judicata shall operate only where the former suit (a) is based on the same cause of action, (b) is between the same parties, and (c) the former court has jurisdiction. Unquestionably, the Nevada court procedure was conducted upon the premise that as to the divorce affecting primarily the petitioner, he could procure his release of the matrimonial obligations by substituted service upon his spouse. And the laws of Nevada were designed to effectuate such substituted service. Had that State intended to take unto itself extraterritorial jurisdiction which invaded the sovereign boundaries of Georgia by its decree by publication or substituted service and thus foreclose their legal rights, that would obviously be invalid and a denial of the due process which the General Government would neither sanction nor tolerate. We therefore conclude that the State of Nevada by its laws never attempted or intended to do more by its court decree in the absence of personal service by an officer authorized by law to serve, or waiver of service in writing or appearance and pleading to the merits than to obtain jurisdiction to decree relative to releasing the petitioner from legal bonds of marriage. No honest mind can conceive of justly forcing a resident of Georgia to go to the State of Nevada to defend a right Georgia laws confer upon that citizen. This court is unprepared to hold that a vital right can be thus trifled with. There can be no such thing as legal personal service of a suit in Nevada upon a resident of the State of Georgia inside the limits of this state. No matter what form it takes, and no matter how solemnly that State might legislate to the contrary, all service of process of another state is "substituted" and is not "personal." We hold therefore that mailing a copy and personally handing a copy of the process issued by the Nevada court to or upon this Georgia resident inside the limits of this state was constitutionally short of personal service and no law of Nevada can control otherwise. Consequently, no personal service in the Nevada suit was had upon this appellant.
3. We now come to the Georgia statute (Ga. L. 1965, p. 263; Code Ann. § 30-226). No doubt that law was enacted to meet a problem which Nevada divorces had created with the people of Georgia. It was definitely intended by that Act to vest indefeasibly in Georgia wives a right to claim alimony and to cause this right to survive any scheme or trick of the husband in obtaining a divorce in another state to defeat the wife's right to assert such claim against him in Georgia courts, unhampered by any foreign divorce decree severing the relationship of wife and husband. Regardless of the respective dates of his Nevada divorce decree, and the approval of the 1965 Act, in deciding her right to alimony, we will apply the law as set forth in the 1965 Act. City of Valdosta v. Singleton, 197 Ga. 194 ( 28 S.E.2d 759).
Therefore, over and above the foregoing rulings, holding the Nevada court decree void because of fraud and that the Nevada court expressly failed to rule on the question of alimony, the 1965 Act, supra, entitles this wife to prosecute her claim for alimony even if these rulings were erroneous. It follows that the court erred in denying the motion for judgment notwithstanding the verdict and in entering judgment in conformity with the verdict.
Judgment reversed. All the Justices concur.