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October 25, 1962

In re ESTATE of Sophus Dee HANSON, Deceased

The opinion of the court was delivered by: TAMM

This case is before the Court on a motion for summary judgment.

The facts of the controversy are summarized as follows: In 1934, Anne Baker Bein (Hanson), movant in the instant case, was lawfully married to one Raymond Bein. They lived together as man and wife until May of 1944 when they separated. In October, 1944, Mrs. Bein took annual leave from her job at the Department of Justice and moved to Miami, Florida. In December, 1944, while still in Florida, she was transferred to an on-leave-without-pay status by the Department of Justice. The reason for her move to Florida, according to her pleadings, was for her health. Early in February, 1945, she filed a Bill of Complaint for Divorce from Raymond Bein in the Circuit Court of Dade County, Florida. Service of the Bill of Complaint was obtained upon Mr. Bein by publication. Before a Special Master in the Dade County Court, Mrs. Bein testified that she held a permanent position of employment in Florida and that she intended to make Florida her permanent home. The Court found that it had jurisdiction of the marriage res, and on the 16th day of March, 1945, entered a final decree of divorce. On the 2nd day of April, 1945, Anne Baker Bein resumed her duties in the Department of Justice in the District of Columbia and has thereafter continued to be a resident of the District of Columbia.

 On August 26, 1949, Anne Baker Bein (Hanson) entered into a marriage ceremony in the District of Columbia with Sophus Dee Hanson, now deceased. No children were born of that marriage. On December 10, 1958, Mrs. Hanson filed a complaint in the Municipal Court for the District of Columbia for an absolute divorce from Sophus Dee Hanson, alleging that 'the plaintiff and the defendant, S. Dee Hanson, were lawfully married in Washington, D.C., on to-wit, August 26, 1949 * * *' Sophus Dee Hanson filed a sworn answer to that complaint in which he admitted all of the allegations of the Complaint save those concerning his cruelty and desertion, and in addition, filed a counterclaim for an absolute divorce on the ground of two years desertion. In this counterclaim, Mr. Hanson affirmatively alleged that the parties were married in the District of Columbia on August 26, 1949.

 On July 23, 1959, the Municipal Court of the District of Columbia entered its findings of fact and judgment. One finding of fact stated specifically that, 'The parties were ceremonially married to each other in the District of Columbia on August 26, 1949.' The judgment further provided that the counterclaim of Mr. Hanson for divorce on the grounds of desertion by Mrs. Hanson was granted and that the bonds of matrimony existing between the parties are 'dissolved, provided, however, that the judgment dissolving the marriage shall not be effective until the expiration of six months from the date of its entry.' No appeal was taken from this judgment.

 On January 10, 1960, 12 days prior to the running of the six month period, Sophus Dee Hanson died. A suggestion of death was filed in the Municipal Court, and the divorce action was abated.

 On February 5, 1957, Sophus Dee Hanson had executed his Last Will and Testament, leaving the sum of Five Dollars to his 'putative wife, Anne Baker Bein Hanson -- whose divorce obtained on March 16, 1945, from Raymond Bein in the Circuit Court, Miami, Dade County, Florida, was and is solely ex parte, fraudulent and illegal, except in the State of Florida * * *' On July 19, 1960, Anne Hanson filed, in the instant case, a renunciation of the bequest to her in said will and requested that she be allowed the family allowance out of the personal estate as the surviving widow.

 Subsequently, the executor and the residuary legatee filed a complaint in the present suit for declaratory judgment to 'determine the status and rights of the putative widow.' The complaint alleged that the 1949 marriage between Anne Baker Hanson and Sophus Dee Hanson, deceased, was void because the prior divorce granted to Anne Baker Hanson in Florida was invalid because of a lack of jurisdiction in the Florida court. Anne Hanson filed an answer to this complaint contending that the marriage to Mr. Hanson was valid and that, further, none of the parties to this litigation may now collaterally attack the Florida decree in this jurisdiction. Mrs. Hanson further contended that the parties, standing in privity with the deceased, are estopped to question the validity of that marriage because that question was determined in the divorce action in the Municipal Court.

 Mrs. Hanson has filed a motion for summary judgment as to the complaint for declaratory judgment, and this motion is presently before the Court. The motion and answer raise numerous issues, among which are the following:

 (1) Was the divorce decree between the deceased and Mrs. Hanson in the Municipal Court final so as to preclude Mrs. Hanson from claiming the status of the widow of the deceased? The District of Columbia decisions on this subject leave no doubt that the decree of divorce dissolving the marriage did not become final. Several reported cases have dealt directly with this question, and all have reached the same result. See Wesley v. Brown, 90 U.S.App.D.C. 351, 196 F.2d 859 (1952); Oliver v. Oliver, 87 U.S.App.D.C. 334, 185 F.2d 429 (1950), and Dillard v. Dillard, 107 U.S.App.D.C. 214, 275 F.2d 878 (1960). The Court in the Wesley case made the following statement, which seems conclusive as to this issue in the present case also:

 'In Oliver v. Oliver, 1950, 87 U.S.App.D.C. 334, 185 F.2d 429, 431 this court dealt with the very question of finality of a divorce decree and ruled that Section 16-421 '* * * contemplates a provisional decree of divorce only, which cannot mature and become effective until lapse of the intervening time' and that therefore the parties do not cease to be married until after the period provided.'

 (2) The second question presented in the motion and answer goes to the effect of the 1945 Florida divorce. This divorce proceeding clearly involves some question as to the validity of the Court's jurisdiction. The divorce was obtained in an ex parte proceeding; the husband was served only by publication and never was within the jurisdiction of the Court. Under these circumstances, the second Williams v. North Carolina case, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, is directly in point. In that case, the Supreme Court dealt directly with the ex parte divorce situation. While the Supreme Court cases *fn1" since Williams have qualified and explained the original rule regarding collateral attacks on foreign courts' jurisdictional findings, none of these decisions has involved third-party attacks on ex parte proceedings; in fact, many have clearly distinguished themselves from the Williams v. North Carolina ex parte situation. For example, the Court in the Sherrer case at 334 U.S. 355 and 356, 68 S. Ct. 1093, said: 'It is one thing to recognize as permissible the judicial reexamination of findings of jurisdictional fact where such findings have been made by a court of a sister State which has entered a divorce decree in ex parte proceedings (citing Williams v. North Carolina). It is quite another thing to hold that the vital rights and interests involved in divorce litigation may be held in suspense pending the scrutiny by courts of sister States of findings of jurisdictional fact made by a competent court in proceedings conducted in a manner consistent with the highest requirements of due process and in which the defendant has participated.' In the more recent cases where the foreign divorce proceedings have been defended, the application of Full Faith and Credit seems always to imply elements of Due Process and Res Judicata. When the original proceedings were ex parte, as in the Williams cases, these other considerations do not exist to such a great extent, and the courts have been less hesitant to review jurisdictional questions. Speaking of cases in which jurisdictional issues were contested, the Supreme Court in the Sherrer case points out that 'we do not conceive it be in accord with the purposes of the full faith and credit requirement to hold that a judgment rendered under the circumstances of this case may be required to run the gantlet of such collateral attack in the courts of sister States before its validity outside of the State which rendered it is established or rejected. That vital interests are involved in divorce litigation indicates to us that it is a matter of greater rather than lesser importance that there should be a place to end such litigation. And where a decree of divorce is rendered by a competent court under the circumstances of this case, the obligation of full faith and credit requires that such litigation should end in the courts of the State in which the judgment was rendered.' (334 U.S. at 356, 68 S. Ct. at 1093, emphasis supplied).

 In the leading case of Johnson v. Muelberger, 340 U.S. 581, 71 S. Ct. 474, 95 L. Ed. 552, the Supreme Court reviewed all of its recent cases involving recognition of foreign divorces. In regard to the Williams cases, the Court said: 'The later Williams case left a sister state free to determine whether there was domicile of one party in an 'ex parte' proceeding so as to give the court jurisdiction to enter a decree. 325 U.S. at 230, n. 6, 237, dissent 277, 65 S. Ct. 1095, 1098, 1117.' The Court then cited and discussed the other leading cases, including Davis v. Davis, 305 U.S. 32, 59 S. Ct. 3, 83 L. Ed. 26. Esenwein v. Commonwealth, 325 U.S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608; Rice v. Rice, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957; Sherrer v. Sherrer (supra); Coe v. Coe (supra) and Estin v. Estin (supra). The Court then made the following statement:

 'It is clear from the foregoing that, under our decisions, a state * * * 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.' 340 U.S. at 587, 71 S. Ct. at 477. (Emphasis supplied).

 In the present case, it appears that no determination of the applicability of the Johnson v. Muelberger rule to collateral attacks on foreign ex parte divorces will have to be made, for regardless of which alternative is selected, it appears that the movant widow will prevail.

 Let us assume, first, that the rule of Johnson v. Muelberger, which directs the courts to look to the law of the granting state, was meant to apply also to ex parte divorces. What would be the decision of the Florida courts in the present case? This question was developed fully by opposing counsel in their excellent briefs. After a careful review of the reported Florida decisions, including the leading cases of State ex rel. Willys v. Chillingworth, 124 Fla. 274, 168 So. 249, Beckwith v. Bailey, 119 Fla. 316, 161 So. 576, and de Marigny v. de Marigny, Fla., 43 So.2d 442, the Court is convinced that the executor and residuary legatee would have no standing to attack the decree in the courts of Florida. While the Chillingworth and Beckwith cases seem to lend strength to their position to attack the decree, the de Marigny case decided by the Florida Supreme Court en banc, seems dispositive of the issue. In the de Marigny case, the collateral attack was made by defendant's second wife. The second wife in her complaint alleged that the Florida courts had no ...

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