Summary
In Woody v. Woody, 91 Ga. App. 806 (87 S.E.2d 222) (1955), the Georgia Court of Appeals explicitly acknowledged the Johnson v. Muelberger rule in the full faith and credit area. So far as we have been able to determine, the Johnson v. Muelberger rule has never been relied on, referred to, or cited in the opinions of this court on the issue of collateral attack upon the judgment of a sister state.
Summary of this case from Kingdon v. FosterOpinion
35520.
DECIDED APRIL 8, 1955.
Complaint. Before Judge Eve. Berrien Superior Court. October 15, 1954.
Mrs. Elsie Griner, Leon Courson, Edward Parrish, for plaintiff in error.
Franklin, Eberhardt Barham, Fred L. Belcher, contra.
1. A party who personally appears to prosecute a divorce proceeding in the State of Florida will not be permitted, under the law, to collaterally attack such decree in Georgia.
2. The special ground is without merit for the reasons given in the body of the opinion.
DECIDED APRIL 8, 1955.
The issues in this case, both of law and of fact, arose under an application for letters of permanent administration on the estate of Frederick C. Woody, deceased (hereinafter called Fred C. Woody), filed by Mrs. Juanelle Woody (hereinafter called the applicant), in the Court of Ordinary of Berrien County, Georgia, and under a caveat thereto filed by Mrs. Carlee Harnage Knight (plaintiff in error here, whom we shall call the caveatrix). On June 14, 1933, the caveatrix married Fred C. Woody. On March 3, 1944, the caveatrix, in her then name of Carlee Harnage Woody, filed in the Circuit Court, Third Judicial Circuit in and for Madison County, State of Florida, in chancery sitting, a bill of complaint for divorce against Fred C. Woody, in which it was alleged, among other things, that she was then and had been for ninety days or more a citizen and resident of the State of Florida, and that she had severed the martial relation with Frederick C. Woody on September 7, 1943. She further alleged in her complaint certain facts, which she averred to constitute legal grounds for the granting of a total divorce under the laws of Florida. To this complaint she attached an affidavit for constructive service on the defendant (Frederick C. Woody), that he was a resident of a State or county other than the State of Florida; that his residence was then 2421 Ala Wai Boulevard, Honolulu (37th) T. H.; that there was then no person in the State of Florida upon whom a service of a summons in chancery would be binding on the defendant; and that the defendant was over the age of 21 years. On this affidavit further appropriate proceedings were had, whereby service on the defendant, Fred C. Woody, was duly perfected, and on which a decree pro confesso was entered on April 4, 1944, in the Circuit Court, Third Judicial Circuit, Madison County, Florida, in chancery sitting. In its decree the court made a finding that due legal service had been had on the defendant, Fred C. Woody, and in the decree the cause was ordered to proceed ex parte. On November 10, 1945, the caveatrix filed an amendment to her bill of complaint in the Florida divorce case, in which she charged that the defendant, Fred C. Woody, had committed adultery with one Mary Hall and divers other women. After said amendment was filed, the Circuit Court, Third Judicial Circuit, Madison County, Florida, on November 10, 1945, rendered its final decree.
The Florida proceedings in entering the divorce decree, as introduced into evidence comply in every respect with the laws of Florida and are not attacked, insofar as the validity of the form is concerned, by either party hereto. The proceedings show that the caveatrix filed a divorce proceeding in Florida in compliance with requirements of the laws of Florida for obtaining a divorce, and allege that she was and had been a resident for the statutory time required to procure a divorce in Florida. She appeared in the divorce proceeding both personally and by counsel. When the applicant filed, in the Court of the Ordinary of Berrien County, an application for letters of administration on the ground that, at the time of the death of her husband, Fred C. Woody, she was the wife of the deceased and was entitled to letters of administration on his estate, the caveatrix denied that the applicant was the lawful wife of the deceased at the time of his death, and that she (the caveatrix) was entitled to letters of administration on the estate of the deceased because the applicant and the deceased had never been lawfully married. She based this contention, in the main, on the ground that the Florida court, at the time the divorce proceedings were had in Florida, had no jurisdiction because the caveatrix was not a resident of the State of Florida at that time. The case was appealed to the Superior Court of Berrien County, by consent of both parties, and a verdict was directed by the court in favor of the applicant. The caveatrix filed a motion for a new trial on the general grounds and amended by adding one special ground assigning error on the exclusion of certain evidence by the trial court on motion of the attorney for the applicant. Error is assigned here on this judgment of the superior court.
On the trial of the case, the caveatrix testified that she never was a resident of the State of Florida; that she did appear and appeal in the chancery court of Florida, where her divorce proceeding was instituted, and that she also employed an attorney in the State of Florida to represent her in her divorce proceeding. She appeared only one day in court, where the decree of the Florida court giving her the divorce against Fred C. Woody was obtained. She testified that she immediately returned to her residence in Berrien County, Georgia, and remained there until the death of Fred C. Woody. She testified also that, after obtaining the divorce decree in Florida and after returning to Berrien County, Georgia, she married a Mr. Knight. The deceased, after the caveatrix obtained a divorce from him, married the applicant, who lived with him until his death.
In our opinion there are two questions to determine in this case: (1) Is the decree of divorce, instituted and prosecuted to a successful conclusion in favor of the caveatrix, entitled to the full faith and credit clause of the Constitution of the United States? Article IV, section I of the Constitution of the United States (the full faith and credit clause) reads as follows: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effects thereof." (Code § 1-401.) (2) Is the exclusion of testimony over objection of the caveatrix reversible error?
1. As to the first question, counsel for the caveatrix call our attention to Marchman v. Marchman, 198 Ga. 739 ( 32 S.E.2d 790), wherein numerous decisions are cited. Our attention is called also to Meeks v. Meeks, 209 Ga. 588 ( 74 S.E.2d 861); Patterson v. Patterson, 208 Ga. 17 ( 64 S.E.2d 585) (wherein the Supreme Court took cognizance of Williams v. North Carolina, 325 U.S. 226, 65 Sup. Ct. 1092, 89 L. ed. 1577), and 27 C. J. S. 1300. We might state here, without further comment, that the facts in those cases are not similar to the facts in the instant case, for the reason that those cases and others on the same principle hold to the effect that a foreign divorce decree may be collaterally attacked where the party making the attack was not served personally or did not appear in person. In the instant case, the caveatrix instituted and appeared in person and by counsel to obtain the Florida decree. She has no legal right to attack collaterally such a decree which she procured in the manner above state. It is elementary that our State courts are bound to follow the decisions of the Supreme Court of the United States regarding what limitations upon the full faith and credit clause of the United States Constitution are permissible. In Johnson v. Muelberger, 340 U.S. 581 ( 71 Sup. Ct. 474, 95 L.ed. 552, 553), among other things it was held: "A state, by virtue of the constitutional clause, must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree, where the decree is not susceptible to such collateral attack in the courts of the state which rendered it . . .
"When a divorce cannot be attacked for lack of jurisdiction by parties actually before the court or by strangers in the rendering state, the full faith and credit clause forbids an attack by them anywhere in the United States . . .
"It is clear from the foregoing that, under our decisions, a state by virtue of the clause must give full faith and credit to an out-of-state divorce by barring either party to that divorce who has been personally served or who has entered a personal appearance from collaterally attacking the decree. Such an attack is barred where the party attacking would not be permitted to make a collateral attack in the courts of the granting state." (Italics ours.) There are many other decisions which we might cite but we deem it unnecessary.
The court did not err in directing a verdict, because the caveatrix instituted and personally prosecuted to a successful conclusion the divorce in question obtained in the State of Florida.
Counsel for both parties argue the question as to whether or not the caveatrix is estopped to attack the Florida decree. In view of our ruling hereinbefore, we deem it unnecessary to discuss this question.
2. As to the special ground: The caveatrix offered evidence to the effect that she had never lived in the State of Florida, and sought to support this by her own testimony and testimony of other witnesses. This evidence was but to substantiate the question that the decree in Florida was procured by fraud. The court properly excluded this testimony.
Thus we determine that the trial court did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.