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PATTERSON v. PATTERSON.
17414.
Alimony. Before Judge Guess. Newton Superior Court. January 5, 1951.
ALMAND, Justice.
1. On the trial of an action by a wife for permanent alimony, where her husband pleads that the marriage between the parties has been dissolved by a judgment of a court in the State of Nevada, and offers in evidence a duly authenticated copy of the proceedings, which showed jurisdiction of the Nevada court over the parties and the cause of action, the court was under a duty to accord prima facie validity to the Nevada decree, with the right of the wife to collaterally impeach the decree on the ground that the husband was not a bona fide resident of Nevada at the time the divorce action was instituted. The court erred in not admitting a copy of the Nevada proceedings in evidence.
2. In such an action; it was error for the court to refuse to permit the defendant to testify as to the facts and circumstances of his leaving Georgia and going to Nevada.
On January 3, 1950, Mrs. Alma Johnson Patterson filed in Newton Superior Court a suit against W. O. Patterson for temporary and permanent alimony. Personal service was perfected on the defendant on March 17, 1950, and on May 10, 1950, he filed his answer, in which he denied the material allegations of the petition, and particularly the allegation that he was a resident of Newton County, Georgia; and asserted that the plaintiff was not entitled to either temporary or permanent alimony, in that on March 3, 1950, he had been granted a total divorce from the plaintiff in the Eighth Judicial Court for the County of Clark in the State of Nevada, and that the bonds of matrimony which had existed between the plaintiff and the defendant had been dissolved on that date. On September 27, 1950, on the trial of the prayer for permanent alimony before a court and jury, a verdict was returned in favor of the plaintiff, awarding her certain real estate, and requiring the defendant to pay to her the sum of $100 per month as permanent alimony, and a decree was entered thereupon. The defendant's motion for a new trial as amended was overruled, and the case is here on a writ of error assigning error on that judgment.
Special ground 1 of the motion for a new trial asserts that, when the defendant was offered as a witness in his own behalf, to give evidence as to the facts aid circumstances of his obtaining a divorce in the State of Nevada, counsel for the plaintiff objected to the evidence; and the trial court, having ruled that he would not permit the testimony to be given in the presence of the jury, sustained the objection, but permitted the defendant's counsel, for the purpose of perfecting the record, to examine the defendant in the presence of the court. The substance of the proffered testimony, on direct and cross-examination, was as follows: that the defendant went to Nevada some time between December 1 and December 12, 1949, with the intention of staying in Nevada, and without any intention of coming back to Georgia; that his purpose was to go into business, and to get a divorce; that upon his arrival in Nevada he registered as a voter; that he had resided in Nevada 6 weeks and 1 day before instituting his divorce action against the plaintiff; that a few days after obtaining the divorce he left the State of Nevada for the purpose of returning to Georgia to dispose of certain property he owned there; that it was his purpose to dispose of the property and return to Nevada; that he had on several occasions discussed with his wife the question of divorce, and if necessary he would go to another State and get one; and that his son obtained a Georgia license tag for his automobile on January 17, 1950, but it was done without any request of defendant, the application being signed in the defendant's name by his son, and this license tag was sent to him by his son, and he placed the same on his automobile, which he used in returning to Georgia.
There was evidence in the record, from the testimony of witnesses for the plaintiff, that the defendant did not leave Georgia until after December 15, 1949.
The trial court, in refusing to permit this testimony of the defendant to be introduced before the jury, stated that the court was of the opinion "that this is a legal question for the court and not a question of fact for the jury, so the court holds that the alleged divorce obtained under the circumstances heretofore noted by the court, and the evidence given on this particular question, was null and void, and contrary to public policy." One of the reasons assigned by the defendant why this ruling was incorrect is that, in excluding the proffered evidence, the court denied the defendant the right to support his plea by evidence, that the evidence sought to be introduced was relevant to the issues made by the pleadings, and that it was a question for the jury, and not one for the court to determine.
Special ground 2 complains that the court erred in refusing to admit in evidence a duly exemplified copy of the proceedings in the case of Willie O. Patterson in the Eighth Judicial Court of the State of Nevada, showing the application of Willie O. Patterson for a divorce, including the pleadings, orders, decrees, and other material parts of the proceedings in said case. At the time this evidence was offered, counsel for the plaintiff objected to its admission on the ground that "this divorce obtained in Nevada and pleaded as a defense under the evidence submitted is null and void--under the evidence [and] the law and under previous ruling of this court." The court sustained this objection and refused to permit the evidence, with the statement that "the court is of the opinion, and so rules, that the alleged divorce is void and illegal, and contrary to the public policy of this State." It is contended that this ruling was erroneous, because the defendant was denied the right to introduce evidence in support of his plea, and that the judgment and record did not show on their faces that the judgment was void or contrary to the public policy of this State, and under the principle of comity of States provided by section 102-110 of the Code of Georgia, it was error to refuse the admission in evidence of this judgment and proceedings from the court of the State of Nevada.
The two special grounds of the motion for a new trial will be dealt with in inverse order.
1. Prior to the decision of the Supreme Court of the United States in Williams v. North Carolina, 317 U. S. 287 (63 Sup. Ct. 207, 87 L. ed. 279, 143 A.L.R. 1273), a judgment of divorce rendered in another State, based upon constructive service on a resident of this State, did not come within the full faith and credit clause of the Federal Constitution, and the courts of this State were not obligated to recognize or enforce such decree. Joyner v. Joyner, 131 Ga. 217 (62 S. E. 182, 18 L.R.A. (N. S.) 647, 127 Am. St. R. 220); Matthews v. Matthews, 139 Ga. 123 (76 S. E. 855). This rule was based upon Haddock v. Haddock, 201 U. S. 562 (26 Sup. Ct. 525, 50 L. ed. 867), which was expressly overruled in the Williams case, supra, and which latter case holds that a divorce granted in Nevada to one who was a bona fide resident of that State, if valid under the laws of Nevada, was binding upon the courts of the State where the opposite party was domiciled when the divorce was rendered, though such party was served by publication, and that such divorce decree was entitled to full faith and credit in the State of the wife's domicile. This ruling, however, did not change the rule prevailing in this State, that a decree of divorce, obtained by a husband in another State, wherein service was perfected on the wife, a resident of this State, by publication, and in which the plaintiff in such foreign judgment was not in fact a bona fide resident of the State in which the judgment was rendered, could be attacked collaterally for fraud when offered in the courts of this State, as a bar to the wife's action for alimony. Matthews v. Matthews, 139 Ga. 123 (supra); Cochran v. Cochran, 173 Ga. 856 (162 S. E. 99); Adams v. Adams, 191 Ga. 537 (13 S. E. 2d, 173); Marchman v. Marchman, 198 Ga. 739 (32 S. E. 2d, 790). On the reappearance of the Williams case (325 U. S. 226, 65 Sup. Ct. 1092, 89 L. ed. 1577, 157 A.L.R. 1366), it was held that such a decree may be collaterally impeached by proof that the court which rendered it had no jurisdiction of the parties or cause of action, even though the record of the proceedings in the foreign court purported to show jurisdiction. In that case it was said: "The burden of undermining the verity which the Nevada decrees import rests heavily upon the assailant." Pp. 233, 234.
The record of the proceedings and decree in the Nevada court, which the defendant offered in evidence, shows on its face that the court had jurisdiction of the plaintiff (the defendant here), and that the plaintiff had his residence in Nevada; and, under the full faith and credit clause of the Federal Constitution, the trial court in this case was under a duty to accord prima facie validity to the Nevada decree; and, upon the admission of the judgment and record in that case, the burden was upon the plaintiff in this case, if she would escape the opera tion of the decree, to show that it was not binding upon her ( Esenwein v. Esenwein, 325 U. S. 279, 65 Sup. Ct. 1118, 89 L. ed. 1608, 157 A.L.R. 1396; Rice v. Rice, 336 U. S. 674, 69 Sup. Ct. 751, 93 L. ed. 957); and such jurisdiction of the Nevada court over the cause of action and the parties is to be presumed until disproved by evidence or by the record itself. Adam v. Saenger, 303 U. S. 59 (58 Sup. Ct. 454, 82 L. ed. 649); Milliken v. Meyer, 311 U. S. 457 (61 Sup. Ct. 339, 85 L. ed. 278, 132 A.L.R. 1357).
Such presumption of validity is rebuttable by evidence of the attacking party showing a lack of domicile of the plaintiff in the foreign divorce forum; and, if the evidence shows that the plaintiff was not a bona fide resident of the foreign State at the time the divorce action was instituted, the court may decline to give full faith and credit to the decree, notwithstanding the finding of the foreign decree that he was such a resident. Giresi v. Giresi (N. J.), 44 Atl. 2d, 345; Rice v. Rice, 134 Conn. 440 (58 Atl. 2d, 523); Atkins v. Atkins, 393 Ill. 202 (65 N. E. 2d, 801); Franklin v. Franklin, 295 N. Y. 431 (68 N. E. 2d, 429); Davis v. Davis, 71 Cal. App. 2d, 150 (162 Pac. 2d, 62). The burden in this case, if the foreign decree had been admitted in evidence, would have been upon the plaintiff to show that the defendant was not a bona fide resident of Nevada at the time he instituted the divorce action. As was said in Franklin v. Franklin, supra: "The burden was upon the petitioner to overthrow the apparent jurisdictional validity of the respondent's Illinois divorce decree by disproving his intention to establish a domicile in that State. Since no such rebuttal was attempted by her or in her behalf, the Illinois decree--though it stood alone--was entitled to prevail." P. 430.
The Nevada decree, which the defendant offered in evidence in support of his plea being properly authenticated and showing jurisdiction of the Nevada court over the cause of action and the parties, was prima facie entitled to respect by the courts of this State, and the court erred in not admitting it in evidence.
2. If the defendant had merely acquired a residence in Nevada for the purpose of obtaining a divorce, this would not be sufficient to give the Nevada court jurisdiction. It would be an imposition on the Nevada court for the defendant to represent himself as being a bona fide resident of that State, and would amount to such fraud on his part as to render the decree entered therein void. Matthews v. Matthews, 139 Ga. 123 (supra). At the time the Nevada decree was offered in evidence and the defendant sought to testify as to the facts and circumstances of his going to Nevada, counsel for the plaintiff objected on the ground that at the time he instituted his divorce action, he was not a resident of Nevada, but was a resident of Newton County, Georgia. To perfect the record, the defendant was permitted to be examined by his counsel, and cross-examined by counsel for the plaintiff, as a witness and out of the presence of the jury, on the question of his place of residence. After such examination, the court ruled that the defendant had not changed his domicile from Newton County, Georgia, at the time he instituted the Nevada divorce action, and that the decree was void. It appears without dispute from the evidence in the record that, at the time of the separation of the parties, which was several years prior to the institution of the alimony action, the defendant's domicile was in Newton County, Georgia, but his domicile at the time he instituted the divorce action in Nevada would have to be determined as if he were a person having no family. Code, 79-401; Gilmer v. Gilmer, 32 Ga. 685; Smith v. Smith, 136 Ga. 197 (71 S. E. 158). In order for the defendant to have changed his domicile from Newton County, Georgia, to Nevada, he must actually have removed to such State with a present intention of remaining there as his place of domicile, or, having removed to the new place, avowed his intention of remaining there as his place of domicile. Such avowal may be proven by express declarations or acts equivalent thereto. Code 79-406; Worsham v. Ligon, 144 Ga. 707 (87 S. E. 1025). In the case last cited, it was said: "If a person actually removes to another place, with the intention of remaining there for an indefinite time as a place of fixed domicile, such place becomes his domicile. If a person leaves the place of his domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in his domicile, he will not be considered as having changed his domicile. Crawford v. Wilson, 4 Barb. 505; Ross v. Ross, 103 Mass. 575. But if a person changes his domicile without any present intention of removing
therefrom, it is nonetheless his domicile, although he may entertain a floating intention to return, or to move elsewhere at some future period." P. 711. The question of domicile is a mixed question of law and fact, and is ordinarily one for a jury ( Harkins v. Arnold, 46 Ga. 656; Forlaw v. Augusta Naval Stores Co., 124 Ga. 261 (1), 52 S. E. 898; Stallings v. Stallings, 127 Ga. 464 (5), 56 S. E. 469, 9 L.R.A. (N. S.) 593; Bellamy v. Bellamy, 187 Ga. 804, 2 S. E. 2d, 413), and should not be determined by the court as a matter of law except in plain and palpable cases. Smith v. Smith, 136 Ga. 197 (supra); Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250 (180 S. E. 20). However, if the evidence demands a finding that there has not been a change of domicile, the court may by proper instructions withdraw the question from the jury. Compare Gainesville & Dahlonega Electric Ry. Co. v. Austin, 127 Ga. 120 (1c) (56 S. E. 254); Lay-Hall Grocery Co. v. Johns, 173 Ga. 695 (161 S. E. 354). The admissibility of evidence is for the court, and its credibility is for the jury. Muller v. Rhuman, 62 Ga. 332 (6); Walker v. Roberts, 20 Ga. 15 (1). See also Elrod v. McConnell, 170 Ga. 892 (1) (154 S. E. 449).
A reading of the rejected testimony of the defendant, and the evidence of the plaintiff's witnesses on the questions of whether the defendant (a) had resided in Nevada for 6 weeks before the filing of his divorce action, and (b) whether he had bona fide changed his domicile from Newton County, Georgia, to the State of Nevada, shows that there was a sharp conflict on the issue of whether the defendant had obtained his divorce through his own fraud. It was not within the province of the court to determine the question of the bona fides of the defendant as a matter of law, where in support of his plea he offered in evidence a divorce decree prima facie valid on its face, and where the evidence on the question of his place of residence at the time of the institution of the action was conflicting. From a reading of the statement made by the trial judge at the time he rejected the proffered evidence of the defendant, it is apparent that he was somewhat influenced by the fact that, on the hearing of the application for temporary alimony, he, after hearing the evidence, had ruled that the Nevada decree was void. But the court's ruling on the hearing for temporary alimony was upon an issue which involved questions of fact and law, and his ruling on such hearing did not become the law of the case. Sumner v. Sumner, 121 Ga. 1 (7) (48 S. E. 727). The cases of Cochran v. Cochran, 173 Ga. 856, and Adams v. Adams, 191 Ga. 537 (supra), relied on by the defendant, are not controlling here, for the reason that in those cases the trial judge ruled the foreign decree void upon the hearing for temporary alimony.
The trial court's refusal to allow the defendant to testify before the jury as to the facts and circumstances relative to his going to Nevada and obtaining a divorce was error. In view of the foregoing rulings, it was error to overrule the two special grounds of the motion for a new trial, and it is unnecessary to pass on the general grounds of the motion for a new trial.
Judgment reversed. All the Justices concur.
C. R. Vaughn Jr., contra.
Reuben M. Tuck, and Howard, Tiller & Howard, for plaintiff in error.
ARGUED MARCH 12, 1951 -- DECIDED APRIL 9, 1951.
Saturday May 23 05:42 EDT


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