Irons v. Irons

¶1Inasmuch as I heretofore concurred in the result of the majority opinion, without writing an opinion in support of my position in the case, and inasmuch as in many respects I am also in agreement with the principles of law stated but not the conclusion of the dissenting opinion written by Arterburn, J., and inasmuch as it appears from the petition for rehearing that the opinions, as written, have not, to the satisfaction of the appellee, resolved the issues of law or the effect thereof, as applied to the facts of this case, it, therefore, seems appropriate that I make this statement of clarification in support of my concurrence in the result of the majority opinion.1

¶2My concurrence is based upon the following considerations:

¶3One: This is not an ordinary appeal in which this court may look only to the facts most favorable to and in support of the decision of the trial court, from which this appeal is taken. In this case we are confronted with the fact of two judgments for divorce involving the same parties, which decrees were entered by two courts of competent and concurrent juris*529diction. The first decree in order of time was granted by the Second Judicial District Court of the State of Nevada; the second by the Circuit Court of Elkhart County, Indiana. This is the unique circumstance under which this court is called upon to determine which of these two judgments must be honored.

¶4Two: In making our decision, we do not consider whether the period of domicile required by the law of Nevada is more or less desirable, from a sociological standpoint, than is the law in Indiana. It is not contended that the Nevada law is basically immoral or contrary to natural law and therefore voidable outside the jurisdiction of the state. Therefore, for the purpose of this appeal the period of domicile prescribed by the Nevada law is not an issue in the case. Rather, since the Nevada judgment is first in point of time, our inquiry into this aspect of the case is limited to consideration as to whether the Nevada judgment is valid under the law of that state. 12 Am. Jur. Constitutional Law §708, 15 C. J. S. Conflict of Laws §4(c), 4(b). State v. Gateway Mortuaries, Inc. (1930), 87 Mont. 225, 230, 287 P. 156, 157, 68 A. L. R. 1512, 1515; Swann v. Swann (1884), C. C. Ark., 21 F. 299.

¶5In deciding this case, the problem which we must resolve is this: By what standard of proof may this court review the evidence in the case before us without violating the rules of appellate procedure by which we are governed, and at the same time give the full faith and credit to the Nevada judgment which is prescribed by the United States- Constitution? The majority opinion relies upon a statement made by Justice Frankfurter in the case of Williams v. North Carolina (1945), 325 U. S. 226, 233, 65 S. Ct. 1092, 1097, 89 L. Ed. 1577, 1584, 157 A. L. R. *5301366, 1371, that, under the circumstance here present, “the burden of undermining the decree of a sister state rests heavily upon the assailant.” Irons v. Irons (1961), 242 Ind. 504, 178 N. E. 2d 156, 158.

¶6As observed in the dissenting opinion by Arterburn, J. the above statement by Justice Frankfurter cites no authority. It does not adequately explain the reason in support thereof. Nor does it enunciate the method by which the rule can be applied with dependability in the appellate process. However, in my opinion the rule enunciated, although inadequately stated, is consistent with the result which must be reached if full faith and credit is to be accorded to the prior judgment of a sister state affecting the same subject matter and the same parties.

¶7Very little authority is cited as to the method by which this court, as a court of appeal, can, on the one hand, fulfill its constitutional obligation to give full faith and credit to the prior judgment of a sister state and, at the same time, adhere to the ordinary rules of appellate procedure which limit our consideration of the evidence to that most favorable to the appellee.

¶8In order to resolve this problem, it seems necessary that we apply the applicable principles of law to an analogous situation which would exist if we were dealing with two courts of concurrent jurisdiction within the state of Indiana. Under such circumstance, by what standard of proof would we on appeal consider the evidence in an action which purported to abrogate a prior judgment in a different court affecting the same parties and the same subject matter? Here, too, we would be required to give to the judgment first in time the full faith and credit to which it was entitled.

¶9*531If the judgment first in time were attacked directly under our two year statute [§3-1224, Burns’ 1946 Repl.], then we would consider the sufficiency of the evidence as in an ordinary appeal since under such circumstance the court which rendered the original judgment would have been given the opportunity and responsibility of either setting aside or affirming the action originally had in that court. However, in event of an indirect attack [in a different court] upon a prior judgment, which is prima facie res judicata, of the issues adjudicated in a subsequent action, the necessity of a different standard of proof on appeal is apparent. Under such circumstances there is reason why the judgment first in point of time must be permitted to stand, unless the evidence in the second proceedings is so conclusive as to establish the invalidity of the first judgment as a matter of law. It would seem that this is comparable to the heavy “burden of undermining the . . . decree [of a sister state],” to which Justice Frankfurter eludes. Any lesser rule regarding the burden of proof assumed by a party who attempts to indirectly re-litigate the same subject matter between the same parties, would result in confusion, and chaos with respect to the final determination of all litigation.

¶10When we apply the standard of proof, stated above, to the facts in this case, we are bound in our decision by the fact that here there is substantial, if not overwhelming, evidence in support of the fact that the appellant had established his domicile in the state of Nevada before prosecuting his action for divorce in that state. It is true that he had not changed his business address for certain purposes to his new domicile, but these facts are not sufficient to compel a conclusion contrary to that reached by the Nevada *532court with respect to appellant’s domicile in that state. For this reason the evidence heard in the Elk-hart County Court, which is now before us on appeal, is not sufficient to abrogate the Nevada decree for divorce. The judgment in the Elkhart Circuit Court was, therefore, erroneous.

¶11A question is presented as to the effect of .the Nevada divorce with regard to the property rights of the parties. Although the Nevada decree was binding upon the parties as to their marital status, the judgment in that proceedings, having some of the characteristics of a decree in rem and not being a decree in personam is not controlling of the property rights of the parties in this state. This principle of divisibility is considered with approval in both the majority and the dissenting opinions. In this I also concur.

¶12Note. — Reported in 178 N. E. 2d 156. Rehearing Denied. 180 N. E. 2d 105.