Summary
In Hanna v. Hanna, 224 Mo. App. 1142, 32 S.W.2d 125, the wife sued for divorce and filed a motion for temporary alimony.
Summary of this case from Wright v. WrightOpinion
Opinion filed November 5, 1930.
1. — Divorce — Granted by Another State — Decree Recognized Absent Fraud and Collusion. In the absence of evidence or finding of fraud and collusion in the procurement of a decree of divorce granted by the court of another state, the courts of this State will give full faith and credit to such decree.
2. — Same — Alimony Pendente Lite — Suit Money — Attorneys' Fees — Evidence — Marriage Dissolved by Decree Granted by Another State — Court Without Jurisdiction to Make Allowances. Where plaintiff brought suit for divorce in this State and filed her motion for attorney's fees, suit money and temporary alimony and at the hearing on such motion defendant introduced in evidence a decree of divorce granted by the court of another state and there was no evidence or finding of fraud and collusion in the procurement of such decree, and, since under that decree the marriage relation between plaintiff and defendant had been dissolved before the hearing on her motion, the trial court was without jurisdiction to make the allowances prayed for.
Appeal from the Circuit Court of Lewis County. — Hon. Paul D. Higbee, Judge.
REVERSED AND REMANDED.
H.S. Rouse and C.D. Stewart for appellant.
Benjamin S. Bell and Walter M. Hilbert for respondent.
The statutes of Missouri give jurisdiction where the petitioner: 1. Resides in the State one whole year prior to filing of the petition. 2. Where the offense or injury complained of was committed within the State, or whilst one or both parties resided within the State. R.S., sec. 1804; Johnson v. Johnson, 95 Mo. App. 329, 68 S.W. 971; Gordon v. Gordon, 128 Mo. App. 710, 107 S.W. 410. Such statutes have been construed to permit the wife, when deserted, to follow her husband to a foreign State where he has acquired a domicile and to sue him for divorce, without waiting a year. She can, if she chooses, claim his domicile as her's. Thoms v. Thoms, 222 Ill. App. 618; Kenley v. Hudelson, 99 Ill. 493; Cheever v. Wilson, 9 Wall. (U.S.) 108; Duxstead v. Duxstead, 17 Wyo. 411, 129 Am. St. Rep. 1138; Bechtel v. Bechtel, 12 L.R.A. (N.S.) (Minn.) 1100; Muller v. Muller, 1915D — L.R.A. (Vt.) 851; Warren v. Warren, 1917E — L.R.A. (Fla.) 490. A domicile, once acquired, continues and the burden of proof is on the person alleging a change. To constitute a new domicile, three things are necessary: 1st. Residence in the new locality; 2nd. Intention to remain there; 3rd. Abandonment of the old domicile. Walker v. Walker, 1 Mo. App. 404; State ex rel. v. Davis, 199 Mo. App. 439, 203 S.W. 654; State v. Snyder, 182 Mo. 462, 82 S.W. 12; State v. Davis, 199 Mo. App. 439, 203 S.W. 654; Moffet v. Hill, 131 Ill. 239; Desmare v. U.S., 93 U.S. 605. A divorce, granted in a foreign State will not be given recognition in another State where fraud is shown or there is a lack of jurisdiction in the court granting same. Silvey v. Silvey, 192 Mo. App. 179, 180 S.W. 1071; Field v. Field, 215 Ill. 496, 74 N.E. 443. Verification of amended petition not necessary where no new ground for divorce introduced. Nolker v. Nolker, 257 So. 798; Garver v. Garver, 145 Mo. App. 353; Rea v. Rea, 174 Mo. App. 715.
This is an appeal from an order granting plaintiff's motion and awarding to her attorneys' fees, suit money and temporary alimony.
In the view we take of the case it will be necessary to state only that plaintiff instituted a suit for divorce against the defendant on the grounds of indignities and abandonment.
In answer to the petition the defendant, pleaded that on July 15, 1929, in the circuit court of the Second Judicial Circuit of the county of Minnehaha in the State of South Dakota, being a court of general jurisdiction, the defendant recovered judgment and decree against the plaintiff, absolutely divorcing him from the bonds of matrimony theretofore contracted with the plaintiff; that said court had full jurisdiction of the subject-matter and of the parties in said suit and that the decree rendered therein had not been appealed from, was in full force and effect and entitled to full faith and credit and that such decree is pleaded as a complete bar to the right of the plaintiff to prosecute this action.
The reply does not put in issue the jurisdiction of the South Dakota court of this class of cases but confines its averments entirely to the fact that said court was without jurisdiction of the parties, that the court was induced to enter the decree by fraud of the plaintiff therein, that at the time of the entry of said decree both parties to the action were residents of Missouri, that no proper legal notice of service was given to defendant, that the plaintiff deceived the court as to the residence and address of the defendant and other like averments.
At the hearing upon the motion for alimony, suit money and attorneys' fees, the defendant introduced in evidence an exemplified copy of the findings of fact, conclusions of law and decree of the circuit court of Minnehaha county, South Dakota. The findings are to the effect that the plaintiff is and has been for more than a year last passed a bona-fide resident of the State of South Dakota during all of which time he has resided in Minnehaha county, South Dakota, that the plaintiff and defendant were married on November 13, 1926; that the defendant deserted the plaintiff on or about January 13, 1928, and found as a conclusion of law that the plaintiff was entitled to a decree of divorce and entered a decree accordingly.
In this state of the record before the trial court on the motion for attorneys' fees, etc., there being no evidence or finding of fraud and collusion in the procurement of the decree of divorce in South Dakota, we must follow the consistent policy of the courts of this State of giving full faith and credit to the decrees of sister States in this class of cases (Keena v. Keena (Mo. App.), 10 S.W.2d l.c. 346; Howey v. Howey (Mo.), 240 S.W. 450; Howard v. Strode, 242 Mo. l.c. 225, 146 S.W. 792) and since, under that decree the marriage relation between plaintiff and defendant had been dissolved before the hearing on the motion, the court was without jurisdiction to make the allowances prayed for.
Other questions are presented by the record but they relate to the pleadings which may be amended, if so advised and, therefore, there is no need of passing upon those questions.
It results that the order and decree granting to plaintiff attorneys' fees, suit money and temporary alimony must be and the same is hereby reversed and the cause remanded to the circuit court. Becker and Nipper, JJ., concur.