The opinion of the court was delivered by: Briggle, Chief Judge.
Plaintiff sues defendant to recover accrued payments of alimony
under a certain decree of divorce rendered by the Circuit Court
of Sangamon County, Illinois, on October 11, 1939. This decree,
among other things, provides that the defendant shall on or
before the first day of each month pay the plaintiff the sum of
$125.00, continuing "so long as plaintiff shall remain unmarried
or for so long as this decree remains in full force and effect,
unaltered and unmodified." Plaintiff, a resident of New York,
asserts that there is due her under this decree, accrued monthly
installments from August 1, 1944, to November 1, 1947, amounting
to $5000.00 and brings suit against the defendant,
a resident of Illinois. This is met by a motion by the defendant
to dismiss for want of jurisdiction, chiefly on the grounds that
the complaint raises the question of the construction and effect
of a divorce decree, and that the Federal Court is without
jurisdiction to act concerning the marital status of the
plaintiff and defendant. Alternatively, defendant's motion as
amended prays for a summary judgment. The motion is supported by
the affidavit of the defendant which discloses that the defendant
has paid to the plaintiff all sums required to be paid under said
decree of divorce to August 1, 1944, and that the plaintiff on
July 3, 1944, at Reno, in the State of Nevada, was remarried to
one Walter J. Henzel. Certified copies of the application for
marriage license are attached to such affidavit and disclose that
the said Walter J. Henzel was divorced at Reno, Nevada, on July
3, 1944, and that Verna L. Crawford was divorced at Springfield,
Illinois. A certified copy of the return of Reverend Brewster
Adams, pastor of the Baptist Church, discloses that he married
Walter J. Henzel of Reno, Nevada, and Verna L. Crawford of New
York City, on July 3, 1944, at Reno, Nevada. It appears without
dispute that Verna L. Crawford was formerly the wife of defendant
and is now Verna Leib Sutton, the plaintiff herein.
Defendant's affidavit attached to his motion further discloses
that the plaintiff after her marriage in Nevada to Walter J.
Henzel demanded of the defendant that he make the alimony
payments provided by said decree for the months of June and July,
1944, (which apparently at that time had not been made in full),
and informed the defendant that his information concerning her
remarriage was correct; that pursuant to said demand by
plaintiff, defendant paid to the plaintiff the sum of $180 and
plaintiff through her counsel acknowledged receipt thereof in
full of all claims that she had under said decree of divorce.
Attached to the affidavit are also copies of correspondence
between counsel for plaintiff and counsel for defendant
supporting such statement in the affidavit.
Plaintiff by leave of court has filed a reply to the Motion to
Dismiss and counteraffidavits. In the plaintiff's
counteraffidavit she admits that she entered into a marriage
ceremony with Walter J. Henzel on July 3, 1944, at Reno, Nevada;
that at a later date, one Dorothy Henzel who was apparently a
former wife of Walter J. Henzel sued the said Walter J. Henzel in
the State of New York for a separation decree, and that on June
22, 1945, a decree was entered, a certified copy of which is
attached to the counteraffidavit, in which it appears that
Dorothy Henzel obtained a decree of separation from the said
Walter J. Henzel, and in which it is recited that the decree of
divorce heretofore procured by the said Walter J. Henzel in the
State of Nevada on July 3, 1944, is null and void. The
plaintiff's counteraffidavit further discloses that in the month
of January, 1945, she instituted an action in the Supreme Court
of New York, praying that her marriage to Walter J. Henzel be
declared null and void, and in this suit a decree was entered by
the New York court in June, 1947, decreeing that the plaintiff is
entitled to a judgment annulling the marriage between the
plaintiff and the said Walter J. Henzel, and that such judgment
should become final three months from its entry, unless otherwise
ordered. Plaintiff's affidavit further discloses that she was
married to one Sherwood Sutton, but does not challenge the
assertion of defendant's affidavit concerning the payment of
$180.00 in full release of his obligations under the divorce
decree of Sangamon County.
It thus appears that the Court is confronted with a suit for
alleged past due payments of alimony under the Sangamon County,
Illinois, decree; that one Henzel obtained a decree of divorce at
Reno, Nevada, on July 3, 1944, and on the same date married the
plaintiff in this proceeding; that afterwards plaintiff demanded
that defendant, who apparently had made all alimony payments up
to June 1, 1944, pay her alimony for the months of June and July,
1944, and advised defendant that she had remarried. Defendant
responded to this request and made such payments and the
plaintiff released the defendant from the alimony provisions of
the Illinois decree. Later, a New York Court held that the
Reno divorce of Henzel was void and awarded a decree to his wife
(not plaintiff here) in the State of New York, and still later
the present plaintiff obtained a decree in New York holding her
marriage to Henzel to be a nullity. The plaintiff now asserts a
liability against defendant for all alimony payments accruing
from August 1, 1944, up to the date of her marriage to Sutton on
November 21, 1947. It thus appears that there is no substantial
or controlling disputed question of fact before the Court on
Defendant's amended motion to dismiss or in the alternative for
summary judgment.
The first question for consideration is the contention of
defendant that this proceeding should be dismissed for want of
jurisdiction. While it is true that the Court would not have
jurisdiction to in any sense modify or vary the terms of the
divorce decree of the Circuit Court of Sangamon County, Illinois,
yet that does not appear to be the purpose of this proceeding.
This is a suit to recover the accrued payments of alimony alleged
to be due plaintiff under the terms of the divorce decree. Under
the law of Illinois, Plaintiff would appear to have a vested
right in the payments thus decreed, Craig v. Craig, 163 Ill. 176,
177, 45 N.E. 153; Dinet v. Eigmann, 80 Ill. 274; and Hotzfield v.
Hotzfield, 336 Ill. App. 238, 83 N.E.2d 605; and no reason appears
why such right cannot be asserted in the Federal Courts, other
jurisdictional requirements being present.
A study of the cases of Barber v. Barber, 21 How. 582,
62 U.S. 582, 16 L.Ed. 226; Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682,
54 L.Ed. 905, 28 L.R.A., N.S., 1068, 20 Ann.Cas. 1061; Barber v.
Barber, 323 U.S. 77, 65 S.Ct. 135, 89 L.Ed. 82, 157 A.L.R. 163,
and other cases, convinces the Court that it has jurisdiction of
the subject matter of this proceeding, and the motion of
defendant to dismiss for lack of jurisdiction should be denied.
Next for consideration is defendant's motion for summary
judgment. It appears from the conceded facts that both parties at
one time treated the Nevada divorce as a valid decree of the
court of Nevada, and entered into a settlement of the alimony
questions involved in the Illinois decree, but the plaintiff now
contends that the New York decree, having invalidated the Nevada
decree so far as New York is concerned, that this court in giving
full faith and credit to the New York decree under consideration,
must hold that her marriage to Henzel was void from the
beginning, and consequently defendant's liability for alimony
under the Illinois decree was a continuing one until she married
Sutton. The question of the validity of the Nevada decree of
divorce which preceded Henzel's marriage to the plaintiff is not
in issue in this proceeding and it is not challenged in this
court except by the contention of the plaintiff that the court
should accept the finding of the New York court in that respect.
While a Federal Court must give full faith and credit to the laws
and decrees of other states, insofar as they are constitutional
and insofar as they are entitled to credit in their respective
states, yet it appears without dispute that a decree of divorce
to Henzel was granted by the State of Nevada, and so far as
appears in this proceeding it is a valid and binding decree in
that state, and the subsequent marriage of plaintiff to Henzel in
Nevada would consequently be presumed to be a valid marriage in
the State of Nevada. It should be remembered that defendant was
not a party to the proceedings in either state.
Counsel for defendant may prepare a judgment order and, after
submitting same to counsel for plaintiff, present to the Court.
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