Zentzis v. Zentzis

SiebeoKER, J. Tbe plaintiff alleges that be bas an interest in tbe farm in question, located in tbis state, and be asserts tbe legal right to recover bis alleged interest in tbis land by action independent of tbe divorce action in tbe Montana court, wherein a judgment of absolute divorce was awarded upon tbe complaint of tbe wife. At tbe time of tbe proceeding in tbe divorce action in Montana tbe husband and wife were domiciled in that state. Tbe divorce action was commenced by tbe wife against tbe husband, tbe plaintiff in tbis action, by tbe service of tbe summons and complaint on him personally under tbe law of Montana. After such service of tbe summons and complaint on him and bis consultation with an attorney of Montana be did not appear or answer in tbe action, and tbe wife, upon her complaint and tbe evidence adduced by her, was awarded a judgment dissolving tbe bonds of matrimony and granting her tbe custody of tbe two minor children, tbe fruit of such marriage. There is no provision in such judgment for alimony or for a final division or distribution of tbe husband’s estate. It is manifest that tbe Montana court obtained jurisdiction of tbe parties to tbe divorce action and of tbe subject matter of tbe action. These facts make tbe judgment of tbe Montana court binding bn tbe husband as to all tbe rights that inhered in and arose out of tbe marital relations. Tbe bus-band, tbe plaintiff in tbe instant action, being domiciled in Montana when be was served with process in tbe divorce action, was properly subjected to tbe process of tbe Montana court and is bound by tbe judgment pronounced against him by that court. Under these facts and conditions a judgment of a sister state must be given faith and credit in Wisconsin under sec. 1, art. IV, Const. of U. S. D’Arcy v. Ketchum, 11 How. (52 U. S.) 165; Pennoyer v. Neff, 95 U. S. 714. Much reliance is placed qn tbe casé of Cook v. Cook, 5-6 Wis. 195, 14 N. W. 33, 443, to sustain tbe contention plaintiff makes in tbis court that tbe divorce judgment of tbe Mon [345] tana court in no way affected bis rights and interests in this farm, because no final division and distribution of real estate in Wisconsin could be awarded by the Montana court, and that such court in fact did not attempt to grant such relief. The Cook Case is not an authority on this point. In that case the husband, who resided in Michigan, had secured a judgment of divorce in an action in Michigan against his wife, who resided in Wisconsin. The wife had not been personally served with notice and did not appear in the action and was ignorant of the action until after judgment, and it appeared that the husband obtained the judgment upon notice by publication under the Michigan law, based upon affidavits which the husband knew to be false and upon an alleged cause of action which was false in fact. This court held that the judgment obtained in such a proceeding was not a bar to a subsequent action by the wife for a divorce, alimony, and division of the husband’s estate in this state. As declared in the opinion under the citation of Doughty v. Doughty, 28 N. J. Eq. 581: “A decree in a divorce suit will have no extraterritorial effect when the defendant is domiciled in another state, and is not served with process nor with notice of the proceedings. A decree for divorce, to be entitled to extraterritorial effect, when the person of the defendant is without the jurisdiction, must be obtained in a manner consistent with natural justice, and such decree is enforced in another state only on the ground of comity.” It is obvious that the plaintiff here does not stand in the favorable position of the wife in that case. Nor can he rely on the principle of comity in the treatment of the Montana divorce judgment in Wisconsin, because it appears that he was domiciled in Montana and was personally served with process in that state, which subjected him to the jurisdiction of the Montana court. In the light of these facts the provision of sec. 1, art. IY, of the United States constitution [346] commands tbe courts of this state to give such judgment full faith and credit. It is claimed that at all events plaintiff, as a party to the action in the Montana court, is bound only to the extent that such court adjudicated upon his rights in the divorce judgment, and that such court neither attempted nor possessed the power to determine his rights in the real estate situated in this state which he conveyed to his wife before she secured the divorce. The allegations of this plaintiff are that the complaint and judgment in the divorce action are silent as to this property and hence his rights therein are not' affected thereby, and he therefore asserts the right to enforce a division and distribution thereof in this action in this state. The argument is made that such action in this state is in its purpose and object ancillary to the Montana divorce action to secure a completed determination as to this property arising out of their marital rights. The right to a division and distribution of the husband’s estate in a divorce action is defined by statute. . Sec. 2372, Stats., provides: “No judgment nullifying a marriage or for a divorce of any kind shall in any way affect the right of a wife to the possession and control of her separate estate, real or personal, except as provided in this chapter; and nothing contained in this chapter shall 'authorize the court to divest any party of his title in any real estate further than is expressly provided herein.” Sec. 2364, Stats., authorizes a court in a divorce action to adjudge to the wife alimony and allowance for support, maintenance, and education of the children committed to her custody, and “the court may finally divide and distribute the estate, both real and personal, of the husband and so much of the estate of the wife as shall have been derived from the 'husband, between the parties and divest and transfer the title of any thereof accordingly, . . .” There is a well recognized practice that an award of alimony is subject to modification at any time by the court that awarded it or by an independ [347] ent action in another court in either the same state or a foreign state, but such power to revise and alter a judgment for alimony does not apply to judgments in divorce actions making a final division and distribution of the husband’s estate. Such a judgment cannot be reviewed or altered in this state after the term of court in which it was rendered. Bacon v. Bacon, 43 Wis. 197; Cook v. Cook 56 Wis. 195, 14 N. W. 33, 443; Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028; Lally v. Lally, 152 Wis. 56, 138 N. W. 651. The rights plaintiff asserts to the land in question arise under the provisions of sec. 2364, Stats., which must be adjudicated in the divorce action. He did not, upon being summoned by the court of Montana to appear and defend his rights arising out of the marital relation, the subject matter of the action, ask to have his rights determined and adjudicated. The claim that the court of Montana had no jurisdiction to adjudicate those rights is not well founded. We must presume that the Montana court possesses the power to adjudge these matters in divorce actions, and such power of that court is not challenged here. Nor is there merit in the claim that the court of Montana could not effectually grant a division and distribution between the husband and wife of real estate located in this state because it was powerless to transfer an interest therein and could not effectually grant relief which conflicted with the title vested in his former wife by the deed from the husband conveying to her an absolute fee. True, that court could not by force of a decree transfer an interest in lands in this state, but since it had jurisdiction of the person of the plaintiff’s wife, who was a suitor in such court, the court could impose relief by way of a division and distribution of this plaintiff’s estate, including Wisconsin real estate, by requiring, as a condition of granting the wife any relief in the divorce action, that she make a transfer of this property vested in her wheresoever located. Dickson v. Loehr, 126 Wis. 641, 106 N. W. 793, and cases cited. This [348] doctrine is clearly recognized in Pennoyer v. Neff, 95 U. S. 714: “Thus the state, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme control over the property by the state within which it is situated” (citing). The allegations of the complaint do not constitute a cause of action for relief in the courts of this state and the trial court properly sustained the demurrer to the complaint. By the Qouri. — The order appealed from is affirmed.