Thrasher v. Thrasher , 4 N.C. App. 534 ( 1969 )

167 S.E.2d 549 (1969) 4 N.C. App. 534

Doris H. THRASHER
v.
James P. THRASHER.

No. 6928SC110.

Court of Appeals of North Carolina.

May 28, 1969.

Richard B. Ford, Asheville, for plaintiff appellee.

McGuire, Baley & Wood, by J. M. Baley, Jr., and Philip G. Carson, Asheville, for defendant appellant.

MALLARD, Chief Judge.

Plaintiff's complaint contains no reference to the divorce decree which she obtained from the defendant in Barnstable County, Massachusetts. In plaintiff's answer to defendant's motion to set aside and vacate the order awarding alimony pendente lite and counsel fees she alleges that the Massachusetts divorce decree is null and void because the Massachusetts court did not have jurisdiction of the parties, and that it was obtained "by connivance and coercion of the defendant and is a fraud upon the courts of Massachusetts."

Thus it develops that the plaintiff's cause of action is a collateral attack in the Courts of North Carolina upon a divorce decree she, as plaintiff, obtained in Massachusetts. "A collateral attack is one in which a plaintiff is not entitled to the relief demanded in the complaint unless the judgment in another action is adjudicated invalid." 5 Strong, N.C. Index 2d, Judgments, § 16, p. 32. It is clear that in the case before us the plaintiff is not entitled to the alimony demanded unless the judgment in the Massachusetts divorce case is invalid. Unless the plaintiff is presently married to the defendant she is not entitled to alimony pendente lite.

Under the provisions of Art. IV, § 1 of the Constitution of the United States it is required that full faith and credit be given to a judgment of a court of another state. Thomas v. Frosty Morn Meats, 266 N.C. 523, 146 S.E.2d 397.

However, a judgment of a court of another state may be attacked in North Carolina, but only upon the grounds of lack of jurisdiction, fraud in the procurement, or as being against public policy. 2 Strong, N.C. Index 2d, Constitutional Law, § 26, In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818; Howland v. Stitzer, 231 N.C. 528, 58 S.E.2d 104.

There is no issue raised in this case with respect to the divorce decree being against public policy.

It is the law in North Carolina when a judgment of a court of another state is challenged on the grounds of jurisdiction that there is a presumption the court had jurisdiction until the contrary is shown. Thomas v. Frosty Morn Meats, supra. There is a presumption in favor of the validity of the judgment of a court of another state, and the burden to overcome such presumption rests upon the party attacking the judgment. 1 Lee, North Carolina Family Law 3d, § 92, p. 353.

In the case of In re Biggers, 228 N.C. 743, 47 S.E.2d 32, which was an action relating to the custody of the children of a marriage that had ended in a divorce obtained in Florida, the court said:

"The petitioner, Mrs. Annie Bost Biggers, now Mrs. Bennick, having entered an appearance and filed answer in the suit instituted by her former husband, J. L. Biggers, in the State of Florida, she is bound by the judgment duly entered in that court in so far as it dissolved the marriage ties. Under the full faith and credit clause of the Constitution of the United States, Art. IV, sec. 1, the Florida divorce decree is valid here. State v. Williams, 224 N.C. 183, 29 S.E. 2d 744; McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27; Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279."

In the instant case the plaintiff here was libellant (plaintiff) in the Massachusetts divorce case. Defendant did not personally appear in the Massachusetts court but was served with process and was represented at the trial by counsel. Plaintiff personally appeared in Massachusetts and testified in court that she was a resident of Barnstable County, Massachusetts. The divorce decree requires the defendant to pay the plaintiff the sum of $600.00 on the first of each month for the support of the plaintiff and the children, "all until the further order of the court." The plaintiff testified that she had received such payments from the date of a separation agreement which the parties entered into in January 1965. The divorce decree became final on 23 December 1965. The payments she was receiving from the defendant at the time of the institution of this action amounted to $710.00 per month. The divorce decree and the separation agreement provide that the plaintiff herein has the custody of the children of the marriage and grants visitation rights to defendant. It was when defendant came to North Carolina to visit his children that process was served on him in this case. In July 1967 plaintiff and the defendant entered into another agreement supplementary to the one executed in January 1965. In this supplemental agreement she is referred to as "Ex-Wife" and the defendant as "Ex-Husband." The fraud and coercion that plaintiff asserts was imposed on her by the defendant was that he told her he would not provide any support and he would not agree to advance the money to buy her a home in England unless she would obtain a divorce. And because of this at her husband's request she came to Massachusetts, participated in the divorce case, testified as a witness, and on her testimony was granted a divorce from the defendant. The defendant then helped her to purchase a home in England by loaning her some money and taking a second mortgage on the property. She later sold her home in England and purchased a home in Asheville. The defendant again loaned her money and took a second mortgage on her home in Asheville as security for the loan. She is presently repaying this money to the defendant. She testified also that her father-in-law secured the services of the attorney who represented her in the divorce action.

Plaintiff contends, and the judge found that the plaintiff had given false testimony as to her residence in the Massachusetts trial. Plaintiff contends and the judge found that she was coerced by the defendant, and that because of such coercion, she perpetrated the fraud on the Massachusetts court by alleging and testifying that both of the parties were residents of Massachusetts.

In Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429, the wife and husband lived in Massachusetts, and the wife went to Florida and instituted a divorce suit there. The husband filed answer denying the allegations of the complaint, including that of domicil. At the trial the husband appeared and personally testified. The wife offered evidence as to her Florida residence and testified generally. After finding that the wife was a resident and that the court had jurisdiction of the parties and the subject matter a divorce decree was entered by the Florida court. Immediately after obtaining the divorce decree the wife married a man whom she had known in Massachusetts and about two months later returned to Massachusetts; thereafter the husband instituted a statutory action in Massachusetts for a declaration that he was justifiably living apart from his wife, alleging that the Florida divorce and the wife's subsequent marriage was invalid. The Massachusetts court held that the question of jurisdiction in the Florida court was open to litigation in Massachusetts. The United States Supreme Court allowed certiorari and held that since the husband had appeared and participated in the divorce proceeding without availing himself of the opportunity to raise the jurisdictional question, the Florida court's finding of jurisdiction was res judicata and entitled to full faith and credit in Massachusetts. This same doctrine is set out in the companion case of Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451, in which the husband left Massachusetts and went to Nevada and there obtained a divorce.

In 1 Lee, North Carolina Family Law 3d, § 98, p. 379 it is stated that:

"When both parties have appeared in the divorcing state and that state makes a judicial finding of domicile, the divorce granted is not subject to a collateral attack in the courts of any other state when the litigation is between the parties to the divorce proceeding. This is true although actually there may have been no domicile in the divorcing state. If the defendant appears and participates in the divorce proceeding, he has had his ``day in court.' He will not be permitted to retry an issue to a previously rendered divorce decree, whether the issue was contested or not. The principle of res judicata applies. If the question of jurisdiction is not susceptible of collateral attack after the litigation in the jurisdiction where the judgment was first rendered, it is not subject to collateral attack in another state by the spouses who appeared in the litigation. The full faith and credit clause of the Federal Constitution bars a collateral attack."

In the present case we hold that the plaintiff cannot attack in this manner the divorce proceeding in Massachusetts in which she and the defendant both participated. The divorce proceeding was not ex parte. It was one instituted by plaintiff. She now says that the reason she instituted the action was because she needed financial help from the defendant. The plaintiff has had her day in the Massachusetts court.

In an annotation in 3 A.L.R. 535 the general rule is stated:

"The party at whose instance a judgment is rendered is not entitled, in a collateral proceeding, to contend that the judgment is invalid. Neither want of jurisdiction, defect of procedure, or any other ground of invalidity can be availed of collaterally, by the party who is responsible for the existence of the judgment."

In the case of Varone v. Varone, 359 F.2d 769 (7th Cir. 1966) the court in quoting the Illinois rule said: "``The rule may now be taken as established that the constitutional requirement of full faith and credit bars either party to a divorce from collaterally attacking the decree on jurisdictional grounds in the courts of a sister State, where the defendant participated in the divorce proceedings and was accorded full opportunity to contest the jurisdictional issues * * *.'"

Under the rule enunciated in Sherrer v. Sherrer, and Coe v. Coe, we are of the opinion and so hold that plaintiff, because of her participation in the Massachusetts divorce proceeding as the moving party, could not attack the validity of the divorce decree in Massachusetts on jurisdictional grounds. See also Chittick v. Chittick, 332 Mass. 554, 126 N.E.2d 495.

We are also of the opinion and so hold that the North Carolina courts must give full faith and credit to this decree of the Massachusetts court and that this bars the plaintiff from this collateral attack in North Carolina.

In the case of Chapman v. Chapman, 224 Mass. 427, 113 N.E. 359, L.R.A.1916F, 528 it is said: "Where a party has invoked the jurisdiction of a court and the other party has voluntarily appeared and submitted thereto, it is not consonant with ordinary conceptions of justice to countenance an attempt at repudiation of that jurisdiction, especially when the attempt would involve the receiving of considerable sums of money without consideration, the confession of bigamy and the unsettlement of other domestic relations presumably entered upon in innocent reliance upon the jurisdiction of such court."

It is not consonant with our conception of justice to countenance this attempt by the plaintiff to maintain this action for alimony solely on her testimony under oath, when a considerable sum of money is involved, in contradiction of her testimony, under oath, in Massachusetts, when according to her testimony a considerable sum of money was involved. In Massachusetts she swore she was a resident, because money was involved. In North Carolina she now swears she was not a resident in Massachusetts at that time, and one can only speculate as to whether her testimony has changed because money is again involved. There is no other evidence in this record to corroborate plaintiff's testimony that she perpetrated a fraud upon the Massachusetts court when she testified there that she was a resident.

The case of Donnell v. Howell, 257 N.C. 175, 125 S.E.2d 448, is distinguishable from the case under consideration. In Donnell the plaintiff and defendant stipulated that they perpetrated a fraud upon the Alabama court in representing that plaintiff was a resident of Alabama when in truth and in fact they were both residents of Surry County, North Carolina, and in addition thereto the defendant did not participate either individually or by counsel in the Alabama trial. In the Donnell case the Supreme Court said:

"In re Biggers, 228 N.C. 743, 47 S.E.2d 32, relied on by plaintiff is clearly distinguishable. In that case no gross fraud was perpetrated on the court in Florida, as was done on the Alabama court by stipulation of the parties here.

The judgment of the able and experienced trial judge is correct and is affirmed, although his conclusion of law upon which he based it is on the wrong ground. He should have based his judgment upon a conclusion of law that the final divorce decree rendered by the Alabama court was null and void for lack of jurisdiction under the laws of the State of Alabama by reason of the stipulation the parties made before him to the effect feme petitioner and the respondent were residents of Surry County, North Carolina, when she instituted the divorce action in the circuit court in Alabama and when four days later that court entered its decree of final divorce, and that the parties by such stipulation admitted they perpetrated a gross fraud upon the Alabama court."

In the case before us there is no stipulation as to any fraud on the court in Massachusetts. The defendant through an attorney and the plaintiff personally and through an attorney participated in the divorce trial. The Massachusetts court had both parties before it and in an adversary proceeding decided the same issue of residence and jurisdiction that is now before the North Carolina court.

In the case before us the defendant has filed a motion for a new hearing on the grounds of newly discovered evidence. The newly discovered evidence is a certificate from the Town Clerk of Barnstable, Massachusetts, to the effect that "There is a memo in my file, under date of April 3, 1964, signed by one James P. Thasher, stating his legal residence on 612 Main Street, Osterville, Mass. (Osterville being a village within the town of Barnstable)." This motion has merit and would be allowed were plaintiff able to maintain this action for alimony. In this connection it is noted that in the libel (complaint) which the plaintiff admits signing to institute the divorce proceeding in Massachusetts she alleged that the defendant was of Main Street, Barnstable (Osterville) in the county of Barnstable.

Plaintiff contends that she was coerced by the defendant to perpetrate a fraud on the Massachusetts court by swearing falsely as to her place of residence. Such an allegation, supported by her testimony that she did testify falsely, has been held not to constitute extrinsic fraud upon which a successful attack upon a judgment may be based. In North Carolina perjury is held to be intrinsic fraud and ordinarily is not ground for equitable relief against a judgment resulting from it. Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165. Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1. In United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 the rule is stated that a party against whom a judgment has been rendered may be granted relief on the grounds of fraud provided the fraud practiced upon him prevented him from presenting all of his case to the court, but that a judgment will not be set aside on the grounds of perjured testimony or for any other matter that was presented and considered in the judgment under attack. Here plaintiff is attempting to set aside a judgment she obtained on the grounds that part of what she testified to in the Massachusetts court was false; this she cannot do.

We have considered all motions filed in this cause, they are denied, except those made which are consistent with this opinion.

For the reasons stated the motion to vacate the judgment awarding alimony pendente lite and counsel fees should have been allowed in the Superior Court. The judgment denying the motion to vacate is reversed.

BRITT and PARKER, JJ., concur.