[79 Ariz. 372] Silver & Silver, and Jack A. Ettinger, Tucson, for appellant.
Barber, Lesher & Dees, Tucson, for appellee.
This is an appeal from an order denying defendant's motion to vacate a judgment theretofore entered in favor of plaintiff in a divorce action.
The record discloses these facts: on July 22, 1946, the plaintiff, Christian Paul Carnahan (appellee), filed a complaint for divorce against his wife, Martha Marie Carnahan (defendant-appellant), in which there was no specific allegation as to the statutory residence of plaintiff. The parties will be referred to as they appeared in the trial court, i. e. plaintiff and defendant. The complaint merely alleged that 'plaintiff and defendant and each of them are residents of Pima County, Arizona'. A decree of divorce dissolving the bonds of matrimony was entered on August 15, 1946. Apparently no court reporter was present at the trial as there is no transcript of the testimony before us. Inter alia this judgment recites:
'* * * the defendant having been personally served with summons; and the time for answering the complaint herein having expired and her default having been duly entered, witnesses were sworn on behalf of the plaintiff and evidence introduced by plaintiff in support of the complaint; and the Court after considering all of the evidence
finds that the allegations of the complaint are true; * * *.'
No appeal was taken from this judgment, nor were any steps (of which the plaintiff was made aware) taken to vacate this judgment until the year 1954, when defendant made a direct attack by filing a motion [79 Ariz. 373] in the original divorce proceeding to vacate the judgment, basing it upon two grounds, viz.:
1. 'An examination of the Complaint and the Judgment shows that the Court did not have jurisdiction in the cause, there being no allegation and no finding that the parties to the action had been residents of the State of Arizona for one year, and of Pima County for six months, immediately preceding the filing of the Complaint.'
2. (The second reason which charged fraudulent representations on the part of plaintiff has been abandoned.)
At the hearing on this motion counsel for defendant stipulated:
'* * * that Mr. Carnahan was actually a bona fide resident according to the terms and statutes as requiring residence in Arizona for a divorce decree. * * *'
Defendant took the position that the matter must be determined solely by what appeared, or failed to appear, upon the face of the complaint and judgment. She contended the stipulated fact that plaintiff was in truth possessed of the statutory residence requirements at the time the complaint was filed was of no moment and should not be considered by the trial court in determining her motion to vacate judgment. The trial court on May 6, 1954 denied the motion to vacate judgment and this appeal followed.
Section 27-803, A.C.A.1939, expressly provides that:
'An action for divorce shall not be maintained in court unless the plaintiff shall, at the time of filing the complaint, have been an actual bona fide resident of the state for one (1) year, and shall have resided in the county where the ...