Opinion
1 Div. 591.
June 17, 1954.
Appeal from the Circuit Court, Mobile County, Claude A. Grayson, J.
Graham H. Sullivan, Mobile, and Alan B. Weissinger, Opelika, for appellant.
A divorce decree, regular on its face, rendered in a proceeding in which both complainant and respondent participated is res judicata between the parties, and under the full faith and credit clause of the federal constitution must be respected by all the states. Ex parte Jones, 249 Ala. 386, 31 So.2d 314; Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26; Mussey v. Mussey, 251 Ala. 439, 37 So.2d 921; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429; Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552. A bill in equity which seeks to set aside a foreign divorce decree on grounds of fraud and misrepresentation by the divorce complainant in the procurement of the divorce is demurrable unless it contains an allegation to show that the divorce respondent was not subject to the jurisdiction of the divorce forum. Authorities, supra. The judgments and decrees of a state shall have the same faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken. Art. 4, Sec. 1, U.S.C.A. Const.; 1 Stat. 122, c. 11, R.S. § 905, 28 U.S.C.A. § 1738; Sherrer v. Sherrer, supra; Johnson v. Muelberger, supra. Jurisdiction of a defendant in a divorce proceeding does not depend upon the appearance by the defendant or service of process within the jurisdiction of the court, but may be obtained by personal service of process outside the State. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273. Res Judicata applies to questions of jurisdiction of subject matter as well as to that of persons. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 183 L.Ed. 104, 38 Am.Bankr.Rep., N.S., 76; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85. All that is necessary to affect a change of domicile is removal to a new locality and the formulation of an intent to remain for an indefinite period. 28 C.J.S., Domicile, § 9; Ex parte Davis, 249 Ala. 221, 30 So.2d 648.
Harry Seale, Mobile, for appellee.
In equity proceedings a finding of fact by the Judge as Chancellor has the force of a verdict and will be disturbed only when clearly erroneous. Carlisle v. Blackmon, 257 Ala. 599, 60 So.2d 332; Cook v. Taylor, 235 Ala. 63, 177 So. 344; Hollingsworth v. Rutledge, 236 Ala. 497, 183 So. 656; Marlowe v. Benagh, 52 Ala. 112; Harris v. Harris, 256 Ala. 192, 54 So.2d 291; Ramsey v. Kitchens, 249 Ala. 609, 32 So.2d 361. Where both husband and wife are domiciled in state, and husband moves to another state with no animus movendi, but merely for purpose of obtaining divorce therein and with intent to remain there no longer than necessary to accomplish such purpose, divorce granted him in such state is invalid in Alabama. Wilkes v. Wilkes, 245 Ala. 54, 16 So.2d 15; Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Andrews v. Andrews, 188 U.S. 14, 15, 23 S.Ct. 237, 47 L.Ed. 366; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804.
This appeal is from a final decree of the Circuit Court of Mobile County, Alabama, in Equity, in favor of complainant-wife, the appellee, declaring null and void a Nevada divorce decree which had purported to divorce complainant and respondent from the bonds of matrimony.
Both of the parties to this action have lived practically all their lives in Mobile County, Alabama. They were married in 1929, and last lived together as man and wife in 1951.
On December 1, 1952, a District Judge of the First Judicial Court of Nevada, for the county of Ormsby, rendered a decree divorcing appellant, Alfred Turner, and the appellee, Alice Turner. In the divorce proceedings in Nevada, process was handed to Mrs. Turner in Mobile County, Alabama. Mrs. Turner made no appearance whatever before the Nevada court, nor did anyone appear for her.
On January 14, 1953, Mrs. Turner filed her bill in the Circuit Court of Mobile County, Alabama, naming Alfred Turner as a respondent, and alleging in the bill that the decree of the Nevada court was obtained through fraudulent and untrue representations on the part of Turner. In short, said bill of complaint alleged that at all times mentioned in the Nevada decree Alfred Turner was a resident of Alabama. She attached to and made a part of her complaint a copy of the Nevada decree.
The demurrer of the respondent, Alfred Turner, was overruled by the trial court. Respondent answered, and the cause was submitted to the court below on testimony taken ore tenus before the trial judge, with the result indicated above.
The principal question of fact litigated in the court below was the residence and domicile of Alfred Turner on December 1, 1952, the date of the Nevada divorce decree. Was he on that date a resident of and domiciled within the state of Nevada? The learned trial court found that he was not.
Three issues are presented upon this appeal. First: Does a court of Alabama have the power and the right to determine for itself the question of domicile, as concerns the validity of the Nevada divorce decree? Secondly: Did the trial court commit reversible error in overruling appellant's demurrer, inasmuch as no allegation within the bill of complaint stated that the appellee made no appearance in the Nevada proceedings? And finally: Was the trial court palpably in error in finding from evidence heard ore tenus that appellant had not in good faith established a domicile in the state of Nevada?
The burden of proving that Alfred Turner had not acquired a domicile in Nevada on December 1, 1952 rested upon the appellee. This issue of fact was fairly tried according to appropriate procedure, and the decree of the lower court to the effect that Alfred Turner had not acquired such a domicile on said date was amply supported by the evidence submitted in the cause.
The recent decision in the case of Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 752, 93 L.Ed. 957, is determinative of the first issue raised on this appeal. There, the Supreme Court of the United States held:
"No personal service was made upon respondent, nor did she in any way participate in the Nevada proceedings. She was not, therefore, precluded in the present action from challenging the finding of the Nevada court that Herbert N. Rice was, at the time of the divorce, domiciled in that state."
See, also, Sutton v. Leib, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608; Williams v. North Carolina, 325 U. S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577; Huggs v. Huggs, 90 U.S.App.D.C. 237, 195 F.2d 771.
No allegations in the bill of complaint affirmatively state that the appellee made no appearance in the Nevada proceeding. However, inasmuch as the omitted allegation was nevertheless made an issue on the trial, any possible defect or error in the pleading was cured thereby, provided the bill was sufficient to invoke the jurisdiction of the court. See Constantine v. Constantine, Ala.Sup., 72 So.2d 831; Birmingham Water Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139; Life Casualty Ins. Co. of Tennessee v. Peacock, 220 Ala. 104, 124 So. 229; Tennessee Valley Sand Gravel Co. v. Pilling, 35 Ala. App. 237, 47 So.2d. 236, certiorari denied 254 Ala. 14, 47 So.2d 245. It follows, therefore, that in conformance with Supreme Court Rule 45, Code 1940, Tit. 7 Appendix, the trial court's action in overruling the respondent's demurrer did not constitute reversible error. Birmingham Water Works Co. v. Barksdale, supra; Life Casualty Ins. Co. of Tennessee v. Peacock, supra; Federal Automobile Ins. Assn. v. Meyers, 218 Ala. 520, 119 So. 230.
Where evidence in an equity cause is taken orally before the trial court, the presumption on appeal in favor of the court's finding is accorded the same weight as a finding of fact by the register. Andrews v. Grey, 199 Ala. 152, 74 So. 62. Furthermore, such findings have the effect of a jury's verdict, and will not be disturbed unless plainly and palpably wrong. Taylor v. Hoffman, 231 Ala. 39, 163 So. 339. Having assiduously examined the record, we are of the opinion that the evidence fully supports the decree of the lower court.
The judgment must be affirmed.
Affirmed.
SIMPSON, GOODWYN and MERRILL, JJ., concur.