Opinion
No. 36563.
October 27, 1947.
1. DIVORCE.
A wife's bill for divorce and for "alimony pendente lite for her support and maintenance from this day forward" was a bill for divorce and separate maintenance, and dismissal of bill was res judicata of issues of both divorce and maintenance, in absence of any showing of any change of condition of the parties.
2. DIVORCE.
Where bill for divorce and separate maintenance was dismissed on demurrer with allowance of 60 days to amend, filing of a later and separate suit for maintenance was a waiver of the right of amendment.
3. DIVORCE.
Where bill for divorce and separate maintenance was dismissed on demurrer with allowance of 60 days to amend, and demand for support was not pressed and no amendment was filed, such demand was adversely adjudicated and could not be made the subject of a second suit, in absence of change of condition.
4. APPEAL AND ERROR.
A wife suing husband for support could seek adjudication of the matter of foreign divorce which husband asserted relieved him of liability to support wife, after ruling that dismissal of prior suit for divorce and maintenance was res judicata in the instant suit.
APPEAL from the chancery court of Lafayette county. HON. V.D. ROWE, Chancellor.
C.A. Bratton and Chester L. Sumners, both of Oxford, for appellant.
The first suit was res adjudicata as to the second suit and the court erred in overruling the plea of res adjudicata.
Balfour v. Wells, 183 Miss. 707, 187 So. 529; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Brown v. Attala Drainage District, 185 Miss. 386, 187 So. 529; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Harvison v. Turner, 116 Miss. 550, 77 So. 528; Hudson v. Gulf Refining Co., 202 Miss. 331, 30 So.2d 66; Jones v. George, 126 Miss. 576, 89 So. 231; Maxey v. Maxey, 152 Miss. 454, 120 So. 179; Neill v. Wells, 164 Miss. 372, 145 So. 341; Rylee v. Rylee, 142 Miss. 832, 108 So. 161; Shaw v. Laurel Oil Fertilizer Co., 92 Miss. 340, 45 So. 878; Taylor v. Bell, 194 Miss. 112, 11 So.2d 825; Viator v. Stone, 201 Miss. 487, 29 So.2d 274; Griffith's Mississippi Chancery Practice, Sec. 622; 50 C.J.S. 11, Sec. 592.
A motion for necessitous support when there is no bill pending for divorce or separate support and returnable to no term of the chancery court is a nullity, and will not support a decree or an amendment.
Johnston v. Johnston, 182 Miss. 1, 179 So. 853; Porter v. Porter, 41 Miss. 116; Rutland v. Rutland, 192 Miss. 613, 7 So.2d 553; Code of 1942, Sec. 2742; Amis on Divorce and Separation in Mississippi, Secs. 169, 170, 172.
All the amendments in the second cause now pending were filed after defense had been made out and without leave of the court, and should therefore be dismissed.
Bradley v. Howell, 161 Miss. 346, 134 So. 843; Code of 1942, Secs. 1302, 1304; Griffith's Mississippi Chancery Practice, Secs. 394, 395.
The chancery court of Lafayette County was without jurisdiction to entertain appellee's amended bill for divorce.
Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Code of 1930, Sec. 1417; Griffith's Mississippi Chancery Practice, Sec. 151.
The decree in the chancery court of Craighead County, Arkansas, divorcing the parties herein, is entitled to full faith and credit in Mississippi.
Hall v. Hall, 199 Miss. 478, 24 So.2d 347; Miller v. Miller, 173 Miss. 44, 159 So. 112; Davis v. Davis, 305 U.S. 32, 40; Haddock v. Haddock, 201 U.S. 562; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 325 U.S. 226; Constitution of United States, Art. IV, Sec. 1.
Stone Stone, of Coffeeville, for appellee.
Mrs. Lynch had the right after the demurrer was sustained to the original bill to file a new bill for separate maintenance.
Rutland v. Rutland, 192 Miss. 613, 7 So.2d 553.
The appellant was in contempt of the chancery court of Lafayette County when he made the motion to dismiss the amended bill of complaint, and there is abundant authority for the proposition that he was not in a position to take any aggressive action until he had purged himself of his contempt.
Hovey v. Elliott, 17 S.Ct. 841, 42 L.Ed. 215; 62 A.L.R. 671, 673, 674.
Jurisdiction of the court granting divorce in one state may be impeached in another, and if it appears that neither party had acquired a bona fide domicile when and where proceedings were instituted, notwithstanding recital of jurisdictional fact and evidence supporting it, decree would be void and entitled to no protection under full faith and credit clause of the Federal Constitution.
Miller v. Miller, 173 Miss. 44, 159 So. 112; Hall v. Hall, 199 Miss. 478, 24 So.2d 347; Williams v. North Carolina, 224 N.C. 183, 29 S.E.2d 744, 89 L.Ed. 1123.
Argued orally by Chester L. Sumners, for appellant.
Bill for divorce and for "alimony pendente lite for her support and maintenance from this day forward" was filed by appellee, May 23, 1945, the cause being filed under the docket number 7984. Demurrer was sustained and the bill dismissed with an allowance of sixty days to amend. No amendment or further pleading appears in the cause.
A second bill was filed June 7, 1945, by appellee "for the support and maintenance" of complainant. It was an original proceeding and bore the court docket number 7991. Succeeding amendments and motions accumulated therein to the point where the learned Chancellor's characterization of the record as "a Chinese puzzle" is seen as a conservative appraisal.
We proceed to the controlling principles which the allowance of an appeal brings up for decision. The Chancellor sustained defendant's motion to dismiss the amended bill filed August 6, 1945, which, in addition to support and maintenance, prayed for "alimony both temporary and permanent" and for divorce. A plea of res adjudicata, interposed by the defendant, and based upon the dismissal of cause number 7894, was overruled. There was in the meantime a decree for "temporary alimony and support and maintenance of complainant" awarding her seventy-five dollars per month. The arrears of this allowance, accumulated during complainant's absence from the State which began shortly after dismissal of cause number 7984, were paid by complainant, who now resists further liability on the ground that he had in the meantime procured a divorce in the State of Arkansas.
The first original bill was one for divorce and separate maintenance both in its text and context. Rutland v. Rutland, 192 Miss. 613, 7 So.2d 553. Dismissal of the bill was res adjudicata of the issues of both divorce and maintenance. Maxey v. Maxey, 152 Miss. 454, 120 So. 179; 50 C.J.S., Judgments, Sec. 643. Filing of a later and separate suit for maintenance made record of an abandonment of the former and a waiver of the right of amendment. There is no showing why the demand for support was not there pressed (Crawford v. Crawford, 158 Miss. 382, 130 So. 688) and since it could have been therein decreed, it was thereby adversely adjudicated. Weathersby v. Pearl River Lumber Co., 88 Miss. 535, 41 So. 65; 50 C.J.S., Judgments, Secs. 712, 716 (citing Mississippi cases). See also Viator v. Stone, 201 Miss. 487, 29 So.2d 274; 20 Am. Jur., Judgments, Sec. 161; Griffith, Chancery Practice, Sec. 622. There is no showing in cause number 7991 of any change in condition of the parties. Maxey v. Maxey, supra. On the contrary the second bill is practically a rescript of the former allegations.
It is true that the last of a series of amendments asked cancellation of the Arkansas divorce, but such proceeding was defensive against the defendant's claim of absolution from matrimonial obligations. The Chancellor in overruling defendant's "motion to dismiss" commented upon the assigned ground that the Arkansas divorce acquitted him of further liability, but the decree only impliedly nullifies the extra-territorial effect thereof since the motion was overruled "in its entirety." While the propriety of injecting by amendment new matter, arising after filing of the bill, is open to question we make no application of such a rule since we deem it not a controlling principle here.
We therefore adjudicate only the plea of res adjudicata and, in applying the rule against the complainant, we are compelled to reverse and dismiss complainant's bill as amended. Such course is without prejudice to appellee to seek such adjudication of the matter of the foreign divorce as she may be advised is proper.
Reversed and decree here for appellant.