[76 Ariz. 156] Fickett & Dunipace and Robert D. Stauffer, of Tucson, for appellants.
Krucker, Evans & Kemper, of Tucson, for appellees.
MURRY, Superior Court Judge.
This is an appeal from a declaratory judgment by the lower court wherein it was adjudged that a Texas divorce decree between one Fritz T. Brandt and appellee Maude Brandt was void, that the subsequent marriage between Fritz T. Brandt and appellant Leta F. Brandt was void and of no effect, and that appellee is the lawful surviving spouse of Fritz T. Brandt, deceased.
In brief the facts are these. The action was brought by Maude Brandt, plaintiff-appellee, against Leta F. Brandt, defendant-appellant, and tried to the court with a jury answering a special interrogatory which counsel for defendant concedes was [76 Ariz. 157] merely advisory to the court. The crux of the matter is that both appellee and appellant claim to be the lawful surviving spouse of Fritz T. Brandt and thus to have a claim to a pension from the United States Veterans' Administration.
Maude Brandt and Fritz T. Brandt were married in New Bern, North Carolina, June 14, 1911. In October, 1935, they, in company with their five children, moved to Tucson, Arizona, with the intention of making Tucson their home permanently or for an indefinite time in the future. Maude Brandt has resided there continuously since that time.
On April 24, 1939, Maude Brandt and Fritz T. Brandt entered into a separation agreement and did not live together thereafter as husband and wife.
Fritz T. Brandt entered the Maritime Service of the United States in September, 1941, at the port of Los Angeles, State of California, and was in said service when he died at a foreign port on March 15, 1946. He first left Tucson in September, 1941, and returned sometime prior to the end of that year. On February 5 the next year he went to Houston, Texas; on February 9 he embarked on a voyage to New York, returning to Houston March 10; then on March 18 he embarked on a voyage which carried him to various parts of the world, returning to Houston in December, 1942.
On February 23, 1943, while in Houston, Fritz T. Brandt commenced an action against appellee for a divorce, being cause No. 290995 in the District Court of Harris County. On March 23, 1943, appellee was served with summons and a copy of the amended complaint at her home in Tucson, by the Sheriff of Pima County, Arizona. Appellee is not a domiciliary of the State of Texas, she was not served with process
within that state, nor did she enter an appearance in that action. On April 27, 1943, the Texas court entered a default decree of divorce to Fritz T. Brandt.
A marriage license was secured in Tucson, May 3, 1943, by Fritz T. Brandt and the appellant, Leta F. Brandt. On the following day a marriage contract was signed and the marriage ceremony was performed by a Christian minister in Tucson. On June 10, 1943, the decedent left Tucson, and from that date until the date of his death, March, 1946, he was never within the State of Arizona for a consecutive period of one year.
The issue of the domicile of Fritz T. Brandt, upon which hinges the solution of this case, was resolved in the following finding of the trial court (which was in accordance with the special finding of the jury) viz.:
'That when the said Fritz T. Brandt went to the City of Houston, Harris County, Texas, in February, 1942, he did not then, nor at any time between said month of February, 1942, and the said 23rd day of February, 1943, have the intention to make the City of Houston,[76 Ariz. 158] Harris County, Texas, his home permanently or for an indefinite period of time.'
No attempt will be made by us to discuss separately each of appellant's fourteen assignments of error. Suffice it to say that all points have been considered and those we deem controlling will be treated.
Appellant vigorously asserts that: 'Under Texas law a failure to comply with the requirements of the residence statute in a divorce action is not jurisdictional.' That may well be true, but it is beside the point. 'Residence' and 'domicile' are not synonymous at common law, nor does the one term necessarily include the other. Saying that residence is not a jurisdictional prerequisite is not equivalent to saying that domicile is not essential to a valid decree. The court's finding in the case at bar dealt with domicile, not residence, and without the intent to make the State of Texas his home either permanently or for an indefinite time, Fritz T. Brandt could not acquire domicile therein. It is well settled that no state has jurisdiction to grant a divorce unless one of the spouses is a domiciliary of the state, for without such domicile there is no sufficient nexus between the state and the marriage relationship or status to entitle that state to put an end to the marriage. In short, there is no jurisdiction of the subject matter of a divorce action, and the state itself lacking such jurisdiction, it cannot be conferred upon its courts. By its decision in the second case of Williams v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366, the Supreme Court of the United States held that a divorce decree granted without domicile of either spouse within the state is void and the decree subject to collateral attack. This pronouncement is applicable here. For later cases in point, see Ulrey v. Ulrey, Ind.Sup., 206 N.E.2d 793; Cohen v. Cohen, 319 Mass. 31, 64 N.E.2d 689, 163 A.L.R. 362; and Hobbs v. Hobbs, 91 U.S.App.D.C. 68, 197 F.2d 412, certiorari denied 344 U.S. 855, 73 S.Ct. 93, 97 L.Ed. ----. Furthermore the jurisdictional basis of the Texas decree cannot be res judicata as to this appellee, who never appeared in the Texas action. And certainly, 'Neither reason nor morals require her to journey into a foreign land, among strange people, to answer the call of a court that had not the slightest claim to jurisdiction over her status.' In re McNutt's Estate, 36 Cal.App.2d 542, 98 P.2d 253, 255.
Therefore, we hold that although the residence statute in a divorce action may not be jurisdictional in the State of Texas, nevertheless a Texas judgment is void and not merely voidable unless the domicile has been established, which was not done in this case, hence such a judgment ...