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Leatherbury v. Leatherbury

Decided: January 24, 1964.

LEATHERBURY
v.
LEATHERBURY



Appeal from the Circuit Court for Montgomery County; Moorman, J.

Henderson, Hammond, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.

Hammond

A second wife appeals from the dismissal of her bill seeking a divorce on the claim that the Alabama divorce her husband obtained in order to marry her was void. The appellant and her present husband had discussed marriage while he was a boarder at her home. She suggested to him that Alabama would be a good place for a speedy divorce from his then wife and drove him to the airplane in the early morning hours of the day he embarked on his journey to the land promising freedom and a new marital experience. The allegation of the lady was that he was back in her living room at ten o'clock in the evening of that same day and as soon as the sixty-day period of proscription against remarriage in the Alabama decree was over, she and her newly freed swain took on the shackles of matrimony, shackles she attempted to cut little more than a year later. She says it was then she heard for the first time that Alabama divorces were not always what they seemed to be. Her bill of complaint set forth no ground for relief other than the claimed invalidity of her spouse's divorce from his first wife.

The Alabama divorce proceedings and the decree are regular on their faces. The wife filed an acceptance of service and an answer to the bill of complaint, in which she admitted the allegations of age, residence and the marriage and denied all else, and requested that her maiden name be restored to her. The decree makes an express finding of jurisdiction, incorporates the agreement of the parties as to support, and restores the wife's maiden name.

The Supreme Court has held that a former spouse who has participated in a divorce case in which there was a full opportunity

to contest the jurisdictional issue, may not thereafter collaterally attack the divorce in a State other than the granting State, if the granting State does not permit such a collateral attack. Sherrer v. Sherrer, 334 U.S. 343; Coe v. Coe, 334 U.S. 378.

The rationale of these cases has generally been thought to be that when the spouse against whom relief is sought appears, in person or by an attorney, by filing an answer or otherwise taking part in the case, the divorce which is granted must be recognized in other States as entitled to full faith and credit, not because of a determination that the court had jurisdiction to grant the divorce but because the participating spouse is precluded by the rule of res judicata. Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees -- A Comparative Study, 65 Harv. L. Rev. 193; 11 Md. L. Rev. 143; 23 Md. L. Rev. 359. If one spouse did not participate, he or she or the State may show that the granting court had no jurisdiction over the plaintiff spouse. Williams v. North Carolina, 325 U.S. 226; Brewster v. Brewster, 207 Md. 193; Naylor v. Naylor, 217 Md. 615. If the original defendant spouse seemingly then participated but in actuality did not, the inattentive deluded or defrauded one may later collaterally attack the divorce. Pelle v. Pelle, 229 Md. 160; Staedler v. Staedler (N. J.), 78 A.2d 896; cf. Gherardi De Parata v. Gherardi De Parata (Mun. Ct. App. D. C.), 179 A.2d 723.

Johnson v. Muelberger, 340 U.S. 581, 589, and Cook v. Cook, 342 U.S. 126, extended the rule of res judicata of Sherrer and Coe and established as the controlling law that a stranger (including a subsequent spouse) to a divorce decree granted by a court in which both parties appeared cannot collaterally attack the validity of the decree unless the courts of the rendering State would permit such an attack. See also DuPont v. DuPont (Del.), 90 A.2d 468; Wolf v. Wolf (Mun. Ct. App. D. C.), 162 A.2d 776; Phillips v. Phillips, 180 N. Y. S. 2d 475, which applied the rule laid down by the Supreme Court.

The complaining wife in the case before us had the burden of persuading the court that Alabama would permit a collateral attack by a subsequent spouse on a divorce decree granted by

one of its courts under the circumstances here present. She did not give notice of her intention to rely on Alabama law under the Uniform Judicial Notice of Foreign Law Act (Code (1957), Art. 35, Secs. 47-53) and there was no waiver of the requirement. The court was not required to notice judicially the law of Alabama (nor are we, Md. Rule 885), other than to presume it is like that of Maryland. Alexander v. Hergenroeder, 215 Md. 326, 330; Hogan v. Q. T. Corporation, 230 Md. 69, 73-74.

This Court has given indication that one who was not a party to a divorce decree granted in a case wherein husband and wife were before the court may not collaterally attack the decree. Fisher, Admrx. v. DeMarr, 226 Md. 509; Ewald v. Ewald, 167 Md. 594; Walker v. Walker, 125 Md. 649. In Wolf v. Wolf, supra, the Municipal Court of Appeals of the District of Columbia read the Maryland cases ...


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