Gates v. Gates , 197 Ga. 11 ( 1943 )

1. The defendant's motion to dismiss the proceeding instituted against him, on the ground that he was a non-resident and that no service by publication had been made on him as required by law, was without merit, as the record shows such perfected service had been made.

2. Under the provisions of the Federal soldiers and sailors civil relief act (50 U.S.C.A. § 521, cumulative part), a person in the military service is entitled as a matter of law to a stay of a proceeding against him in any case to which that statute is applicable, upon his bare application stating that he is at the time in the military service, and where nothing else appears as evidence on the question of impairment of his ability to defend the action; but where, as in the present case, a verified application for a stay was made, alleging only conclusions, and not specific facts, as to impairment of ability to defend by reason of military service, the judge, construing the defendant's evidence most strongly against him, was authorized to find, from the absence of such specific facts, that they did not exist or would have been alleged, and in his discretion to deny a stay of the proceeding.

(a) The court was authorized to refuse a stay, for the further reason that in the proceeding against the defendant, to set aside a decree of divorce obtained by him in the same court against the petitioner, it was shown on the face of the record that the decree was void because of lack of jurisdiction in the court rendering the same; and there being no possible defense by the defendant to the action to set aside the void decree, his ability to defend could not be said to be materially affected by reason of his military service.

(b) Nor would the petitioner's amendment seeking permanent and temporary alimony, together with attorney's fees, as an incident to he petition to set aside a void decree of divorce obtained in the same court by her husband, render erroneous the judgment refusing to stay the proceeding, where, as shown by the record, the husband had obtained such decree during his military service, and thus imposed upon her the absolute necessity of assuming the burden of setting aside such decree, and subjected her to an expense chargeable under the law to the husband.

3. The record showing that the decree of divorce obtained by the defendant was void for lack of jurisdiction in the court rendering it, the petitioner was still the lawful wife of the husband, and entitled to temporary alimony and attorney's fees as sought in her amended petition, and the discretion of the court in allowing the same will not be disturbed.

No. 14650. NOVEMBER 10, 1943. REHEARING DENIED DECEMBER 2, 1943. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. On November 8, 1941, W. B. Gates, a colonel in the United States Army, stationed at Fort Benning, Georgia, filed in Harris superior court an action for divorce against his wife, Mrs. Constance K. Gates, alleging acts of cruel treatment, that she resided at Carmel, California, her last known address being p. o. box 2342, that he had been a resident of the State of Georgia for more than twelve months, and that his location, Fort Benning, was contiguous to Harris County. Two verdicts of divorce were rendered in his favor, one on January 12, 1942, and the other on July 13, 1942, and a proper decree was entered by the court. On September 19, 1942, Mrs. Gates filed a petition in equity in Harris superior court, seeking to set aside the two verdicts and the decree, her petition alleging fraud as follows: that the defendant in the present suit failed to give her last known street address to the clerk of the superior court of Harris County, and she did not receive notice by publication, by which notice was purported to have been given her of the divorce action, and she did not receive a copy of the newspaper containing notice, and that in fact she resided at 1045 Washington Boulevard, Oak Park, Illinois, which address was well known to the husband; that she conversed with him and corresponded with him and visited him during the pendency of his divorce action in Harris County, but that at no time did he acquaint her with the fact that such action was pending, and at all times fraudulently concealed from her the fact that it was pending, and she was without knowledge of the same until after the final verdict was rendered, when he advised her that he was divorced from her. She alleged, that though he alleged that he was stationed at Fort Benning, Georgia, at a post contiguous to Harris County, Harris County does not touch the Fort Benning reservation at any place; and that as he did not allege that he was a resident of Harris County, the court of that county had no jurisdiction for purposes of divorce. She denied his allegations of cruel treatment by her, and set up a defense to his divorce action. Service was obtained by serving his attorneys in the original divorce action.

On November 6, 1942, Mrs. Gates amended her petition by alleging that W. B. Gates was then residing at Morris Field, North Carolina, and prayed for service by publication. Service was effected by publication before the appearance term.

In January, 1943, and at the appearance term, counsel for Gates moved to dismiss the proceeding, on the grounds that there was no service of Mrs. Gates's petition by publication, and that the service effected on Gates's counsel, who were not parties to the action, was not sufficient. It does not appear from the record that the plea was verified either by Gates or his counsel, and his legal residence was not alleged.

At the appearance term counsel for Gates, in response to the petition of Mrs. Gates, filed a properly verified answer by Gates, and set up that he was colonel in the United States army air force, and was at the time stationed at Morris Field, Charlotte, North Carolina, and asked that all proceedings be stayed, under the soldier's and sailors' civil relief act of 1940, until such time as he could make a proper defense.

Mrs. Gates filed another amendment, praying for temporary and permanent alimony and attorneys' fees. A rule nisi was issued by the court and was served on counsel for Gates, requiring Gates to show cause on May 8, 1943, why the prayers of Mrs. Gates should not be granted.

On May 8, 1943, after hearing arguments of counsel for both parties, the court entered an order dismissing the motion to dismiss the proceeding, and refusing to stay the proceedings. In the order it was recited that the attorneys of record for Gates "announced to the court that in response to the rule nisi issued in the case they were present, in the office of the judge of the superior court of Chattahoochee circuit, at the court-house in Columbus. Georgia, the same being the time and place fixed by the rule nisi in the case, for the purpose of disposing of all motions pending before the court, including plea of lack of jurisdiction and lack of service and motion to stay proceedings under soldiers' and sailors civil relief act, filed by the defendant, and upon the statement of counsel for defendant that he waived proof as to service by publication and waived the affidavit of the clerk and the order of the judge perfecting service; and after introduction of evidence and arguments of law," the court ruled as stated above. The court also entered the following order on the application of Mrs. Gates for alimony: "In response to the rule nisi issued by the court in said case, . . and after the announcement of counsel for the above-stated parties . . that they were ready to proceed with the hearing as to said temporary alimony, and after presentation of law, arguments of counsel and the introduction of evidence in said matter, it is ordered by the court" that alimony and counsel fees be paid by Gates as set out in the order.

The exceptions are to the dismissal of the motion to dismiss the proceeding, and denying a stay of the proceedings; and to the award of temporary alimony and attorneys' fees. 1. The defendant's motion to dismiss is based upon the ground that he is a resident of North Carolina, and that there is no prayer for service by publication and no order of the court perfecting service, and that the prayer for a second original to be served upon the defendant's counsel in Fulton County, Georgia, is without authority of law. The petition as amended shows that the defendant is a non-resident, and prays for service by publication. The record shows that service was perfected, and an order of the court to this effect was duly entered. It is apparent that the motion to dismiss was without merit; and the court did not err in overruling it.

2. The plaintiff in error filed a verified application to the trial court, praying for a stay of the proceeding under the provisions of the soldiers' and sailors' civil relief act of 1940, 50 U.S.C.A. § 521 (Cumulative annual part), as follows: "At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person in his behalf be stayed as provided in this act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service." The application, in addition to reciting that the applicant was at the time actively engaged in the military service of the United States, stated that he was a colonel in the army air force, stationed at Morris Field, Charlotte, North Carolina, and that his ability at the time was materially impaired because of his inability to appear personally and make a defense and testify in his own behalf, and that a judgment against him would result in irreparable damage to him. At the time of the application the record in the court showed that the main proceeding sought cancellation of the divorce decree which the defendant, during his military service, had procured against the petitioner in the same court in which the present proceedings were filed. The record in the divorce proceeding showed that the defendant therein was a non-resident of the State, and that the petitioner therein was not a resident of Harris County, in which the divorce action was brought.

The question for decision is whether or not these facts authorized the court to deny the application for a stay of the proceeding. The Federal statute, supra, confers upon the trial judge the power to stay a proceeding on his own motion in the exercise of his discretion. It then provides that upon an application for a stay, the proceeding shall be stayed as provided in the act, unless in the opinion of the trial judge the applicant's ability to prosecute or defend is not materially affected by reason of his military service. Under the first provision it appears that the judge is left free to stay the proceeding according to his own judgment, although the military service might in some degree constitute an impairment to prosecute or defend; but under the second provision it seems clear that when the application is made it is imperative that the stay be granted unless it is made to appear further, by relevant evidence touching the question of impairment to prosecute or defend resulting from military service, that there is no material impairment. The act places no burden upon any one to produce evidence touching this subject; but in view of the fact that it does authorize the judge to deny the application when, in his opinion, there is no impairment, it is obvious that the judge has full power to make such inquiry as he may feel the justice of the case demands. He may obtain this evidence from either party, or the record in the case may constitute such evidence. It matters not which party produces the evidence or from what source it comes; so long as it is legal evidence relevant to the issue the judge is authorized to consider it, and if in his opinion there is no material impairment by reason of the applicant's military service he may deny a stay. The language of the act does not authorize a construction which would place upon the applicant the burden of proving that his ability to prosecute or defend the action is materially impaired; and therefore we disapprove the decisions of the Court of Appeals in Pope v. U.S. Fidelity GuarantyCo., 67 Ga. App. 415, 560 (20 S.E.2d 618,21 S.E.2d 289), where the act was given this construction. Our construction conforms to the decision of the Supreme Court of the United States in Boone v. Lightner, 319 U.S. 561 (63 Sup. Ct. 1223,87 L. ed. 1099). That opinion, although it contains some statements that are difficult to reconcile, ultimately holds that where the applicant for a stay voluntarily offers evidence to show an impairment in his ability to defend the action, and this evidence, when subjected to legal tests, fails to show impairment, the trial judge is authorized to deny a stay. A Federal statute being involved, that decision is binding upon this court. An applicant might well rest his request for a stay upon the bare statement that he is at the time actively in the military service, and, with nothing more appearing as evidence touching the question of his impairment by virtue of his service, the trial judge would be required, as a matter of law, to grant the stay. But when the applicant undertakes by his verified application to show impairment by alleging conclusions to that effect, which was done in this case, this evidence immediately becomes subject to the rule that it must be construed most strongly against him; and so construing it, the judge was authorized to find, from the absence of specific facts, such as that an unsuccessful attempt by the applicant to obtain a leave of absence from the army had been made, that such facts did not exist or else would have been alleged; and thus by the process of reasoning followed in the Boone case, supra, the court was authorized to find, as was said by the Supreme Court of the United States in that case, that the claim that military service prejudiced the defendant was groundless and that his absence "was dictated wholly by litigious strategy."

In addition to this evidence offered by the applicant, the record in the divorce proceeding was relevant and legal evidence on the question of impairment of the applicant's ability to make his defense. The constitution of this State (Code, § 2-4301) declares: "Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides." This provision of the Constitution states indispensable essentials for jurisdiction. The record shows a total absence of these essentials; and hence the court which rendered the divorce decree had no jurisdiction. Lack of jurisdiction renders the divorce decree null and void. Jones v.Jones, 181 Ga. 747, 752 (184 S.E. 271); Haygood v.Haygood, 190 Ga. 445 (4) (9 S.E.2d 834, 130 A.L.R. 87);Stewart v. Stewart, 195 Ga. 460, 462 (24 S.E.2d 672). Want of jurisdiction in the court to render the divorce decree is a defect that is incurable; and hence it was legally impossible for the applicant to make a defense to the present proceeding brought for the purpose of setting aside the void decree. His inability so to do would have existed had he been in civilian life no less than in military service. In this situation, regardless of how strongly the application may assert that the service man's ability to make a defense is materially impaired by reason of his military service, the contention is answered by the unyielding law which declares that no defense whatever can be made to an action to set aside a decree which is shown by the face of the record to have been void ab initio because the court was without jurisdiction to render it. Therefore, since no legal defense can in any event be made, the defendant's ability to make a defense can not be said to have been materially impaired by reason of his military service.

Neither would the petitioner's amendment seeking alimony render erroneous the judgment refusing a stay. The applicant, as shown by the records of file in the trial court, had, during his military service, gone to the civil court and sought the benefit of legal process in dissolving his marital bond with his lawful wife. By this action he had procured a record of a void decree which purported to dissolve his marriage with her, thus freeing himself from the duty to support his wife and imposing upon her the absolute necessity of assuming the burden of obtaining a cancellation of that void decree. This placed upon her an expense which under the law of this State is chargeable to her husband. Although the divorce decree is, as pointed out above, void on the face of the record and may be disregarded without its first being formally canceled by a judgment of the court, it nevertheless might be employed by the husband as a wrongful means of preventing the Government from deducting from his compensation an allotment for the support of his wife. To avoid this she was justified in bringing the proceeding to set aside the void decree. The entire record authorized the denial of the application for a stay.

3. Though the defendant made no appearance in person, it is shown in the order of the court awarding alimony and counsel fees that his counsel were in court on the date set for a hearing, and announced that "they were ready to proceed with the hearing as to temporary alimony;" and it appears that evidence was introduced, and that argument was had by counsel for both parties. Having jurisdiction of the subject-matter, and the defendant having appeared in court through his counsel, the court was vested with complete jurisdiction to award temporary alimony and attorney's fees under her application for alimony, both temporary and permanent, together with attorney's fees. No complaint is made as to the amount of the award; and the discretion of the court in allowing temporary alimony and attorney's fees will not be disturbed.

Judgment affirmed. All the Justices concur.