have married her even if he knew her true age; that she always wanted to have children; that from the day she learned defendant would seek a divorce she was in a state of physical and mental turmoil; that she signed the property settlement agreement due to threats of deportation based upon her Scottish birth, due to threats of annulment and to ill publicity among her friends, and without thoroughly reading or comprehending the contents of the agreement. Lastly, she says she has no recollection of signing the power of attorney, although admitting her signature thereon. Defendant, on the contrary, asserts that while they had a happy life until he learned of her deception, she had a fear of having children; that she made excuse after excuse to postpone conception; that while defendant would have married her even if he had known her true age, he would not have agreed to postpone having children. He further asserts that her physical and mental condition from January through March was not so severe as plaintiff maintains; that she had the property agreement in her hands for at least ten days; that she had read it and understood it; and that plaintiff has a convenient memory in regard to the power of attorney, for she signed it so that defendant would go out of the District to avoid publicity surrounding the divorce.
Plaintiff seeks permanent maintenance, attorney's fees, etc. For this Court to grant her request, it must refuse recognition to the Nevada divorce decree and then set aside the separation agreement which was incorporated into the decree.
Under the full faith and credit clause, U.S.Const. Art. 4, § 1, a valid decree rendered by a court of competent jurisdiction is entitled to recognition in another state. A state granting a divorce decree has jurisdiction if the plaintiff is validly domiciled in such state. Williams v. State of North Carolina, 1942, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279. A divorce decree based upon a finding of domicile by the divorce granting state, and entered in a proceeding in which the defendant appeared, is entitled to full faith and credit and cannot be impeached by a court of a sister state on the ground that the court granting the divorce had no jurisdiction for lack of requisite domicile of any of the parties. Sherrer v. Sherrer, 1948, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429; Coe v. Coe, 1948, 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451.
This rule is predicated upon the opportunity of the nonresident defendant, who makes an appearance, to litigate the jurisdictional issue of domicile. It follows that whether or not the defendant availed himself of the opportunity is immaterial. Whether or not defendant in the divorce proceedings admitted, Coe v. Coe, supra, or failed to question, Johnson v. Muelberger, 1951, 340 U.S. 581, 71 S. Ct. 474, 95 L. Ed. 552, or contested, Sherrer v. Sherrer, supra, the plaintiff's domicile, collateral attack on the issue of domicile is unavailable.
Counsel for defendant, relying upon this rule, insists that no collateral attack is available in this case since plaintiff, by signing the power of attorney, made an appearance in the Nevada divorce proceeding. The cases upon which defendant relies are not controlling because none involved an appearance obtained by intimidation from one mentally and physically unnerved, under circumstances of duress and as part of a measured scheme by a defendant to defraud the court challenging the divorce decree. In all cases cited by defendant the appearance was of such a nature that a fair opportunity was actually afforded to contest the jurisdiction of the divorce granting state and there was no such fraud upon the court as is indicated here. Cook v. Cook, 1951, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146; Sherrer v. Sherrer, supra; Coe v. Coe, supra; Johnson v. Muelberger, supra; Drinkwater v. Drinkwater, D.C. 1953, 111 F.Supp. 559.
In this jurisdiction, and in others, less than a fair and complete appearance has been held not to constitute an estoppel to collateral attack on the foreign divorce. See particularly Hobbs v. Hobbs, 1952, 91 U.S.App.D.C. 68, 197 F.2d 412. Also Holt v. Holt, 1935, 64 App.D.C. 280, 77 F.2d 538; Staedler v. Staedler, 1951, 6 N.J. 380, 78 A.2d 896, 28 A.L.R.2d 1291; Gromeeko v. Gromeeko, 1952, 110 Cal.App.2d 117, 242 P.2d 41.
The Court finds that the appearance made by Mrs. Ryan was less than the kind which creates an estoppel to collateral attack on the jurisdiction of the Nevada court. The Court finds, beyond this, that in defendant's anxiety to obtain a divorce he employed tactics which can only be construed as a calculated endeavor to defraud this Court, and that plaintiff's appearance cannot validate such fraud. At no time did defendant manifest an intent to abandon his District of Columbia domicile and take up a new domicile in Nevada. The evidence indicates that he planned to perjure himself as to taking up Nevada residence before he went there and did in fact perjure himself when he arrived.
The presumption of validity of the Nevada divorce decree has been overcome by sufficient evidence establishing that neither party was validly domiciled in Nevada. As a result, such decree need not be recognized in the District of Columbia. When a claim of bona fide domicile is betrayed by the evidence, it has been the consistent policy of the District of Columbia to refuse recognition to the divorce. Hobbs v. Hobbs, supra; Huggs v. Huggs, 1952, 90 U.S.App.D.C. 237, 195 F.2d 771; White v. White, 1945, 80 U.S.App.D.C. 156, 150 F.2d 157; Evans v. Evans, 1945, 80 U.S.App.D.C. 133, 149 F.2d 831; Sears v. Sears, 1937, 67 App.D.C. 379, 92 F.2d 530; Holt v. Holt, supra.
Since defendant's entire course of conduct betokens an attempt to defraud this Court on the issue of domicile, it is too much to ask that this Court give recognition to a decree obtained under such circumstances.
Since the divorce is not recognized, the property settlement agreement incorporated into it is not res adjudicata and may be examined by this Court. Divorce proceedings are equitable in nature. When a court is asked to determine rights in a suit for maintenance it must look to all existing conditions and circumstances before framing its remedial relief. Franklin v. Franklin, 1948, 83 U.S.App.D.C. 385, 171 F.2d 12. While plaintiff's deception concerning her age was dishonorable and should not be condoned, neither can the Court condone an unconscionable property settlement agreement which strips the wife of all her financial rights and was obtained by intimidation and coercion at a time when plaintiff lacked reasonable mental stability. Defendant is employed at a salary of $ 10,000 a year and receives retired officer's pay amounting to $ 50 a month. He holds real and personal property which amounts to more than $ 10,000. Plaintiff is fifty-six years old, has not been gainfully employed since 1941 when she married defendant. Due to her emotional disturbance and her age, her possibilities for earning a living are limited. She has less than $ 2,000. The background, the spirit and the letter of this agreement are such that the Court is obliged to strike it down.
It is the opinion of the Court that plaintiff be awarded permanent maintenance in the amount of $ 150 a month. Defendant is to pay counsel fees of plaintiff in the amount of $ 500. The Court finds that plaintiff is not entitled to other furniture except such as she may have in her possession.
An order may be prepared consistent with these findings.
© 1992-2004 VersusLaw Inc.