of any showing of invalidity, appellee is foreclosed, by the Florida judgment, from the right to maintenance.'
Could the Court of Appeals have considered that the trial court passed on the validity of the Florida decree insofar as domicile is concerned, and yet have held in its opinion that the decree was 'unchallenged'?
I believe that the Court of Appeals, in the light of the record before it, treated the finding of the trial court as merely holding that the question of the validity of the Florida decree was not essential to his determination of the questions before him, as indicated by his statement that 'it is not necessary for the Court to pass upon this question as to whether or not he acquired a domicile in Florida, or whether or not there is any constitutional question involved,' and that 'the divorce in Florida does not have any effect whatever upon this maintenance case.'
This view holds even though evidence on the question of domicile was taken in the proceeding, for it was not passed upon and no finding with reference thereto was made by the trial court. To hold otherwise -- the question having been raised but ignored by the trial court and no finding made, and the Court of Appeals therefore having found there was no challenge -- would mean a denial of the plaintiff's right to have a vital issue determined. Whereas, if the mandate be held to authorize a new trial, the plaintiff would be given her day in court, defendant would have an opportunity to meet the issue of domicile there presented, and a finding could be made by the trial court as to whether the defendant was or was not domiciled in Florida.
To deny plaintiff the right to a finding as to the validity of defendant's Florida divorce decree would be contrary to the law as enunciated by the Supreme Court in Williams v. North Carolina, May 21, 1945, 325 U.S. 226, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577, 157 A.L.R. 1366, where the Court stated:
' * * * A judgment in one State is conclusive upon the merits in every other State, but only if the court of the first State had power to pass on the merits -- had jurisdiction, that is, to render the judgment.
"It is too late now to deny the right collaterally to impeach a decree of divorce made in another state, by proof that the court had no jurisdiction, even when the record purports to show jurisdiction * * * .' It was 'too late' more than forty years ago. German Savings Society v. Dormitzer, 192 U.S. 125, 128, 24 S. Ct. 221, 222, 48 L. Ed. 373.
'Under our system of law, judicial power to grant a divorce -- jurisdiction, strictly speaking -- is founded on domicil. Bell v. Bell, 181 U.S. 175, 21 S. Ct. 551, 45 L. Ed. 804; Andrews v. Andrews; 188 U.S. 14, 23 S. Ct.237, 47 L. Ed. 366. * * * '
While it is true that this case was not decided until after the Court of Appeals' decision in the case at bar, it should be noted that the prior Supreme Court decisions there followed were handed down in 1901 (Bell v. Bell), 1903 (Andres v. Andrews), and 1904 (German Savings Society v. Dormitzer).
It should be further noted that the Supreme Court's opinion in the earlier case of Williams v. State of North Carolina, 1942, 317 U.S. 287, 63 S. Ct. 207, 210, 87 L. Ed. 279, 143 A.L.R. 1273, was in no wise contradictory of the above quoted paragraphs, for in that case the record did not present the question whether North Carolina had the power to refuse full faith and credit to the Nevada divorce decrees because it found no bona fide domicile had been acquired in Nevada, and the Court expressly stated, ' * * * we must treat the present case for the purpose of the limited issue before us precisely the same as if petitioners had resided in Nevada for a term of years and had long ago acquired a permanent abode there.'
Our Court of Appeals in Evans v. Evans, 80 U.S.App.D.C. 133, 149 F.2d 831, decided May 28, 1945, held that the validity of a decree obtained in another jurisdiction may be attacked on the ground that the party procuring the divorce lacked domicile. Significant, too, is the fact that the Evans case was determined prior to entry of judgment on the mandate in the case at bar on September 4, 1945. To the same effect see White v. White, 80 U.S.App.D.C. 156, 150 F.2d 157, which also was pending in the Court of Appeals at the time the case at bar was argued in the lower court, but was not decided until June 11, 1945.
Counsel for defendant stresses the fact that on the petition for rehearing filed with the Court of Appeals the prayer of plaintiff was in the alternative, the second part praying that, if the cOurt reverse the determination of the trial justice, the matter be remanded to the trial court for retrial. If the Court of Appeals construed its mandate and opinion as I have, there was no need for it to pass upon the alternative prayer in the petition for rehearing, for a retrial was permissible under the mandate following its opinion.
Specifically, I construe the Court of Appeals' opinion to hold that, notwithstanding the trial court's receipt of evidence relating to the subject of domicile, such receipt was totally ineffective because of the trial judge's determination that the Florida decree, valid or invalid, was no bar to the maintenance action in the District of Columbia, which the Court of Appeals held to be error.
I therefore conclude that under the mandate of the Court of Appeals and the law as established by the Court of Appeals in the Evans and White cases, supra, as well as the determination of the Supreme Court in Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 157 A.L.R. 1366, and the cases therein cited, a retrial is consistent with the opinion and mandate of the Court of Appeals in this case.
The motion to dismiss is therefore denied.
Counsel will present an appropriate order, and the case should be set down for early hearing.
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