Rosa M. WHITE, Appellant,
Joseph WHITE, Appellee.
[83 Ariz. 306] Herbert B. Finn, Phoenix, for appellant.
V. L. Hash, Phoenix, for appellee.
UDALL, Chief Justice.
This is an appeal by the wife, Rosa M. White, plaintiff-appellant, from a judgment dismissing, for the second time, her complaint in a suit for separate maintenance. The trial court's decision was based on the
fact that after the initiation of said action the marriage bwtween the parties was dissolved by a final ex parte divorce decree obtain by the husband, Joseph White, defendant-appellee, in the State of Colorado. Although no longer married the parties will be referred to as in the lower court, i. e., plaintiff and defendant, or as wife or husband, respectively.
Plaintiff and defendant were intermarried in Oklahoma on June 2, 1916, and moved to the State of Arizona some time in the year 1924. In 1951 defendant allegedly abandoned plaintiff and moved to Colorado where he established a legal residence. On December 9, 1952, plaintiff filed the instant in rem action for separate maintenance. Service was had by registered mail in the nonresident defendant. Jurisdiction is impliedly claimed by reason of alleged community real property within the state which is specifically described in the complaint. On December 29, 1952, defendant was granted an interlocutory decree of civorce in the State of Colorado in an action in which the plaintiff did not appear nor was she personally [83 Ariz. 307] served, but was represented by a court-appointed attorney. The record is silent as to when such action was instituted. Said decree states, inter alia:
'Ordered, Adjudged and Decreed, that during the six months period next ensuing after the date of this decree the parties hereto shall not be divorced, and neither party shall contract another marriage; that during such period the court may, upon motion or petition of either party, or upon its own motion, for good cause shown, after a hearing, set aside this decree; * * * .' (Emphasis supplied.)
It then recites that if no such appeal has been taken it will be final at the expiration of six months. While the Colorado court had no jurisdiction of the two minor children, nevertheless the wife was therein awarded the custody and control of the said children; however, the decree was silent as to any provision for the support and maintenance of either the wife of children.
In his first 'Answer and Motion' defendant moved to dismiss plaintiff's separate maintenance suit for the reason he had obtained this interlocutory decree of divorce. The motion was granted and on appeal this court reversed, stating that such decree, not being final, was not then entitled to the benefit of the full faith and credit clause of the Constitution of the United States. White v. White, 78 Ariz. 397, 281 P.2d 111.
Plaintiff's complaint was ordered reinstated and thereafter by special appearance defendant pleaded as a bar the Colorado divorce decree, supra, which in the interim had become final. The court below, on the theory that the Colorado final decree must now be given full faith and credit, granted a motion to dismiss and entered judgment for defendant. This appeal followed.
Appellant's three assignments of error are covered in substance by the following proposition of law. The Colorado decree, being ex parte, merely terminated the in rem marital status and hence the full faith and credit clause of the United States Constitution, U.S.Const. art. 4, § 1 does not preclude the wife, on the record presented, from litigating in Arizona-which is allegedly the matrimonial domicile-the matter of support for herself and children.
The decree of divorce in question could not, nor did it purport to, determine more than the in rem marital status of the parties as that was the limit of the jurisdiction of the Colorado court. To that extent only we accord it full faith and credit. However this ex parte decree cannot affect the economic and property rights of the parties in Arizona.
This concept, that is, recognition of the dissolution of the marital status without[83 Ariz. 308] necessarily extinguishing all of the obligations of the husband originally created by the common law as incidents thereto, is ofttimes termed, for lack of a better name, a 'divisible divorce'. The term actually
is a misnomer for the parties are divorced. As we understand the term it applies only to ex parte divorce decrees and has no application where the court had in personam jurisdiction over both parties so as to be able to litigate both the marital status and the property and economic rights arising thereunder. See Yarborough v. Yarborough,290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269; Lynn ...