Gurley, John Harris

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Maryland Law ReviewVolume 23 | Issue 4 Article 6The Present Validity Of Alabama "Consent"Divorces - Gherardi De Parata v. Gherardi DeParataJohn Harris GurleyFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Family Law CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationJohn H. Gurley, The Present Validity Of Alabama "Consent" Divorces - Gherardi De Parata v. Gherardi De Parata, 23 Md. L. Rev. 359(1963)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol23/iss4/6DePARATA v. DePARATAThe Present Validity Of Alabama "Consent" DivorcesGherardi DeParata v. Gherardi De Parata1Defendant husband flew to Birmingham, Alabama andduring a period of several hours signed a complaint fordivorce and an affidavit which recited he was "a bona fideresident of the State of Alabama and had been such forthe period required by law."2 Defendant tendered to theAlabama lawyer representing him a paper entitled, "AnAcceptance of Service of process and Answer and Waiverof Respondent" signed by the plaintiff's wife and also aletter signed by her, addressed to another Alabama lawyer,authorizing him to file the "waiver" in her behalf. Thepurpose of these written documents was for wife to waivethe right to contest the issue of her husband's domicile inAlabama. On the basis of these pleadings an Alabamadivorce decree was mailed to husband and he then notifiedhis wife that they were divorced. Plaintiff wife broughtthis action in the form of a bill to affirm the marriage andto nullify the allegedly fraudulent divorce obtained byhusband in Alabama.' The lower court found that wifeknew of and consented to the proposed divorce proceedings.It then held that while the proceedings in Alabama ap-peared on their face to be irregular, her consent and thefact that she appeared by counsel and interposed no ob-jection to the lack of jurisdiction or took no appeal fromthe decree in Alabama, rendered the court without powerto give her relief under the full faith and credit clause ofthe Federal Constitution. The Municipal Court of Appealsfor the District of Columbia in reversing the lower courtreasoned: "Here there was not such actual appearance andparticipation by the wife as to justify recognition of thedecree which followed. The rule announced in Sherrer andCoe does not require it and we hold for lack of jurisdictionover the res, or over either of the parties, the Alabamadecree is subject to challenge in this jurisdiction."4In theory, as far as federal law is concerned, the divorcedecree of an American state is entitled to full faith andcredit only if the divorcing state had jurisdiction over themarriage res by virtue of being the domicile of at least one1179 A. 2d 723 (D.C. 1962).2Id., 724; Code of Ala., Tit. 34, § 29 (as amended) provides: "When thedefendant is a nonresident, the other party to the marriage must havebeen a bona fide resident of this state for one year next before the filingof the bill, which must be alleged in the bill and proved; provided how-ever, the provisions of this section shall be be of force and effect whenthe court has jurisdiction of both parties to the cause. of action."8 See D.C. Code (1961) § 16-422. Which authorizes such a suit.'179 A. 2d 723, 725 (D.C. 1962).1963]MARYLAND LAW REVIEW [VOL. XXIIIof the parties. 5 Domicile is then the basis for jurisdictionin divorce law. Consequently a marriage can only comeunder the jurisdiction of a particular state court by reasonof one of the parties being domiciled within the geograph-ical jurisdiction of that court.6 The two parties to a mar-riage cannot, by coming voluntarily before a court, thusconfer this necessary jurisdiction over their marriage res.7Williams v. North Carolina III was decided in 1945 andin the approximately 18 years since then,9 the law of inter-state divorce has been debated, examined, appealed, andgenerally confused. ° The essential holding of the case, thatwhen a divorce decree of a foreign state is collaterallyattacked the examining state has a free hand to determinewhether or not the acting party in an ex parte proceedingwas domiciled in the state granting the divorce so as togive that court jurisdiction over the marriage res, remainsas the starting point of any discussion in this area of thelaw." The Supreme Court has qualified and examined thearea several times since then, 2 but the most importantqualification and the one with which these Alabama de-crees are most closely connected is contained in Sherrer v.Sherrer5 and its companion case of Coe v. Coe.14 These twocases as a unit rendered immune from such collateral at-tacks those divorce decrees where "there has been partici-pation by the defendant in the divorce proceedings, andwhere the defendant has been accorded full opportunity to'GOODRICH, CONFUCT OF LAWS, (3d ed. 1949) 395.6Maryland Is in accord with these principles. See 'Gregg v. Gregg,220 Md. 578, 155 A. 2d 500 (1959); Brewster v. Brewster, 204 Md. 501,105 A. 2d 232 (1954); Epstein v. Epstein, 193 Md. 164, 66 A. 2d 381(1949) ; and materials cited therein.7Jennings v. Jennings, 251 Ala. 73, 36 So. 2d 236, 237, 3 A.L.R. 2d662 (1948). There the COurt said, "Jurisdiction, which is the judicialpower to grant a divorce, is founded on domicile under our system oflaw. * * * it is recognized that unless one of the parties has a residentor domicile within the state, the parties cannot even by consent conferJurisdiction on the courts of that state to grant a divorce." For a criticaldiscussion of domicile see 30 St. Johns L.R. 270 (1950).8325 U.S. 226 (1945).OFor an excellent discussion of Interstate Divorce up to and includingthe first Williams case, see Strahorn and Reiblich, The Haddock CaseOverruled - The Future of Inter8tate Divorce, 7 Md. L. Rev. 29 (1942).10 See generally, Baer, The Law of Divorce Fifteen Year8 after Williamsv. North Carolina, 36 N.C. L. Rev. 265 (1958), and materials cited therein.11 Maryland has followed the case, Gregg v. Gregg, 220 Md. 578, 155A. 2d 500 (1959).1See generally, Armstrong v. Armstrong, 350 U.S. 568 (1956); Cook v.Cook, 342 U.S. 126 (1951); Johnson v. Muelberger, 340 U.S. 581 (1951);Rice v. Rice, 336 U.S. 674 (1949) ; Kreiger v. Kreiger, 334 U.S. 555 (1948) ;Estin v. Estin, 334 U.S. 541 (1948); Esenwein v. Commonwealth, 325 U.S.279 (1945).1"334 U.S. 343 (1948), noted 11 Md. L. Rev. 143 (1950).14 334 U.S. 378 (1948), noted 11 Md. L. Rev. 143 (1950).360DePARATA v. DePARATAcontest the jurisdictional issues...."- Dean Griswold inhis article16 on divorce jurisdiction has interpreted thecases to hold that:"[WIhere the absent spouse participates in the divorceproceedings by appearance (which may be through anattorney), by filing an answer, or by otherwise takingpart, the divorce which is granted is binding and effec-tive, and must be recognized in other states. This isnot a determination that the court had jurisdiction togrant the divorce; it depends rather upon a rule thatthe participating spouse is precluded by res judicata.M,17Generally the concept of res judicata is now the acceptedinterpretation of the Sherrer and Coe cases." The problemis one of determining how far the principle is applicableand under what circumstances. The key to this determina-tion seems to lie in the meaning of the word "participation"as used by the Supreme Court. Clearly if there is no par-ticipation or appearance by the defendant in the foreigndivorce proceeding the doctrine of res judicata is not appli-cable. 9 Most state courts speak of a sufficient amount ofparticipation and look for such things as personal appear-ance by the defendant,20 signing a power of attorneywhereby defendant was represented by a counsel of his21own choosing, or personal service within the divorcingcourt's geographical jurisdiction even without a later per-sonal appearance.22 The underlying noiion in all of thesedecisions,2" as to what constitutes a requisite amount ofparticipation seems to be that if the participation by theparty defendant puts him in a procedural position to con-test the jurisdictional fact, then in a collateral attack heis precluded by the res judicata principle of the Sherrer"Supra, n. 13, 351.Grisw1old, Divorce Jurisdiction and Recognition .o1 Divorce Decrees -A Comparative Study, 65 Harv. L. Rev. 193 (1951).1 Id., 216.8See, Note, Res Judicata and Interstate Divorce, 11 Md. L. Rev. 143(1950); Note, Development in the Law - Res Judicata, 65 Harv. L. Rev.818 (1952)."This was the circumstance in Williams v. North Carolina II, 325 U.S.226 (1945). There the party defendant to the divorce proceeding inNevada did not even know of the divorce proceeding and had only beenbrought before the Nevada court by means of a substituted service prbcess.10Nappe v. Nappe, 0 N.J. 337, 120 A. 2d 31 (1956).Schlemm v. Schlemm, 31 N.J. 557, 158 A. 2d 508 (1960).0 Johnson v. Muelberger, 340 U.S. 581 (1951).See 28 A.L.R. 2d 1303 (1953), for a comprehensive annotation of thewhole area and idea of "participation."19631MARYLAND LAW REVIEW [VOL. XXIIIcase from raising the issue again.24 The general consensusof these decisions is that in most of the Alabama "consent"decrees, at least in theory, there is the requisite amount ofparticipation merely in the uncoerced granting of a powerof attorney. Presuming therefore that most of these Ala-bama "consent" decrees would pass an "amount of partici-pation" test and that in the instant Parata case there wassuch a requisite amount of participation by the wife,25 whydid the court rule the way it did? The Parata court seemedto be moving towards a distinction, which, while not im-pinging the res judicata rule of Sherrer and Coe, does adda qualification or additional test. The language of theSherrer case itself gave the first clue when the Court sug-gested the type or kind of participation necessary - "wherethe defendant has been accorded full opportunity to con-test the jurisdictional issues .... ,21 This seems to meanthat there must be the requisite amount of participationand it must be of the right type or kind. Simply stated,the Parata Court seems to be adding a "type or kind ofparticipation" test to what we have already seen might becalled an "amount of participation" test. The real ground-work for this reasoning appears first in Staedler v. Staed-ler,27 which was decided close on the heels of the Sherrercase. There the New Jersey Supreme Court limited theapplication of the Sherrer case to "a true adversary pro-ceeding where the parties are represented by counsel oftheir independent choice and where there is opportunityto make a voluntary decision on the question as to whetheror not the case should be fully litigated either on thequestion of jurisdiction or the merits.... - In generalthis is not the kind or type of participation present in theAlabama "consent" decree. The effect of the signing of apower of attorney in the Parata case was merely for alawyer to present to the court the wife's waiver of theright to contest the jurisdictional issue - it certainly wasnot what would be called the appointing of a lawyer torepresent a client in a true adversary proceeding. In theParata case the sole purpose of the wife's participationSee Bozeman, The Supreme Court and Migratory Divorce: A Re-exam-ination of an Old Problem, 37 A.B.A.J. 107 (1951) and Paulsen, DivorceJurisdiction by Consent of the Parties - Developments Since Sherrer v.Sherrer, 26 Ind. L.J. 380 (1951).2 The presumption may be premature in the Parata case because 'f dueprocess requirements, as mentioned on p. 726 of the decision, but thecourt does not seem to rest its decision on this point, so it seems fair totake the presumption that her acts were sufficient, at least in amount, toresult in "participation."'334 U.S. 343, 351 (1948).6 N.J. 380, 78 A. 2d 896, 28 A.L.R. 2d 1291 (1951).Idh., 902.362DePARATA v. DePARATAwas for her to waive domicile requirements for her hus-band so, in effect, a fraud could be perpetrated on theAlabama court. If then the purpose and effect of the requi-site amount of participation is only to put the defendantbefore the court with the clear intention of thus avoidingthe domicile requirements and not for the purpose of con-testing or having the opportunity to contest the issue ofjurisdiction, then the Parata court seems to be saying thatthe res judicata principle of the Sherrer case should notbe applicable to preclude collateral attack even thoughthere well may have been the requisite amount of partici-pation. The Parata case and the recent cases29 affirmativelyciting it seem to be taking this narrower approach to theSherrer rule, first enunciated in the Staedler case, andusing it to impeach the extraterritorial validity of theseAlabama "consent" decrees."°There is a further factor which creates widespread spec-ulation concerning the validity of these Alabama "consent"decrees. Chief Justice Vinson's majority opinion in theSherrer case contains the following statement; the doctrineis limited to cases "where the decree is not susceptible tosuch collateral attack in the courts of the State whichrendered the decree."' 31 Hartigan v. Hartigan32 has renderedsuch Alabama "consent" decrees susceptible to a collateralattack in Alabama, though the extent of the decision is stillsomewhat in doubt. 3 The basic holding of the Hartigancase is that a divorce decree could be vacated on the court'sown motion after discovery of fraudulently alleged domi-cile. No matter how construed, the case casts ominousdoubts on the validity of these consent decrees when testedeither in Alabama or elsewhere.3 4The combination of a narrow application of the Sherrerrule of res judicata by adding a "type and kind of partici-pation" test as an instrument to prevent fraud on courtsby parties who have not met domicile requirements, andPelle v. Pelle, 229 Md. 160, 165, 182 A. 2d 37 (1962) and Guerieri v.Guerleri, 75 N. J. Super. 541, 183 A. 2d 499, 502 (1962).0 Maryland has affirmatively cited the Staedler case and those otherstate courts adopting a narrower application of the Sherrer and Coe resjudicata principle: Colby v. Colby, 217 Md. 35, 42, 141 A. 2d 506 (1958)cert. den., Appleby v. Colby, 358 U.S. 838 (1958).81334 U.S. 343, 351 (1948).n 272 Ala. 67, 128 So. 2d 725 (1961).0Reese, Alabama Divorces, Prac. Law, March, 1961, pp. 78, 83; Rossand Crawford, Gresham's Law of Domestic Relations: The Alabama Quickle,27 Brooklyn L. Rev. 224 (1961)."Hartigan v. Hartigan, 272 Ala. 67, 128 So. 2d 725, 733 (1961). Therethe Court said: "Not only is it conclusive that the 1954 divorce decree wasvoid for want of jurisdiction of the subject matter in Alabama, but it isnot entitled to full faith and credit in other jurisdictions."19631MARYLAND LAW REVIEW [VOL. XXIIIthe factor of possible attack in Alabama itself when a courtthere is presented with evidence of fraud as to allegeddomicile, leaves considerable legal doubt as to the validityof these Alabama consent decrees if later attacked by adissatisfied party. There remains however, the equitableconsideration of the problem.The effect of judgments in sister states rendering theseAlabama consent decrees void could, often times, be ex-tremely harsh. If parties have remarried in reliance onthese consent decrees and have had children, such sisterstate decrees voiding a consent divorce decree renders in-nocent parties guilty of bigamy and their children illegi-timate. There is also the possibility that parties, not ingood faith, may be given the opportunity to have a secondday in court and to have these Alabama decrees overturnedsimply because it is now obvious that greater pecuniarybenefits can be obtained. However, these equitable con-siderations are inconclusive in argument against the Paratacase and cases following its narrow approach. This is sobecause a court faced with such equitable considerationscan use the familiar equity notions of unclean hands3 5 orlaches to work an equitable estoppel on the party collater-ally attacking the divorce.36 In a proper case these equita-ble principles can be used to balance the legal result ob-tained under the narrow approach of the Parata case sothat decisions are not extremely harsh on parties who haverelied on consent decrees in good faith.In conclusion, it is desirable that the courts follow thelead of the Parata case in restrictively applying the Sherrerrule as to res judicata. This combination of a narrowedapplication of Sherrer and liberal use of equitable estoppelwill, in an appropriate case, harmonize the two conflictingunderlying policy considerations in this area of the law;namely, that full faith and credit37 be given to sister statedecrees, but that such decrees not be used to conflict withor overturn the fundamental social and public policy of anindividual state.38JOHN HARits GURLEY15See for application in this area, McClanahan v. McClanahan, 79 OhioApp. 231, 72 N.E. 2d 798 (1946).See generally for an excellent discussion of this area: Clark, EstoppelAgainst Jurisdictional Attack on Decrees o1 Divorce, 70 Yale L.J. 45 (1960)." Johnson v. Muelberger, 340 U.S. 581, 584 (1951). There the court said:"The full faith and' credit given is not to be niggardly but generous, full."'5Williams v. North Carolina II, 325 U.S. 226, 230 (1945). There thecourt said: "[T]hose not parties to a litigation ought not to be foreclosedby the interested actions of others; especially not a State which is con-cerned with the vindication of its own social policy.. . " Also see, Slankyv. State, 192 Md. 94, 63 A. 2d 599 (1949).364

The Present Validity Of Alabama  Consent  Divorces - Gherardi De Parata v. Gherardi De Parata

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The Present Validity Of Alabama Consent Divorces - Gherardi De Parata v. Gherardi De Parata

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