Petition — Foster v. Kingdon

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Supreme Court, U. &

“™ FILED é.

MAR 11 1977

MICHAEL RODAK, JR., CLERK

INTHE <‘ « 7

Supreme Court of the United States

October Term, 1976

76-1328

No. __

CAROL KINGDON FOSTER,

Petitioner,

VS.

GEORGIA PHILLIPS KINGDON,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE STATE

OF GEORGIA

PAUL WEBB, JR.

DAVID E. BETTS

84 Peachtree Street, N.W.

Atlanta, Georgia 50303

BERTRAM S. BOLEY

1540 First National Bank Tower

Atlanta, Georgia 30303

Counsel for Petitioner

TABLE OF CONTENTS

Gedmieme BOlOW . 2 6 ts we ewe ewe wee eo &

perrrrrrrrn ..-. '. «- 4 « « © & @ &@ @

Questions Presented ....... ed

Statutes, Constitutional Provisions

and Regulations. ...... 2

Statement of the Case. ...... 3

Reasons for Granting Writ. .... 5

re. Ci Ue Ck es ee es eC

Appendix

TABLE OF CITATIONS

Cases

Abernathy vs. Chambers, 482 S.W.

Mie Bae Ces BUCEle 6+ «© « « « okt

Andrews vs. Andrews, 188 U.S. 14,

ae Ge GOe Set (aeee) «© «© © oo ot

Bell vs. Bell, 181 U.S. 175, 21S.

aR } lk eee ee ee ee ee

Coe vs, Coe, 334 U.S. 378 (1948). .11

oie

Cook vs. Cook, 342 U.S. 126, 128,

72 S. Ct. 157, 96 L Ed 146

(1951) . 7 - . . ° . ° ° . e .

Crisco vs. Crisco, 313 So.2d 529

s.C. Ala. 5). . . . . . °

Davis vs. Davis, 305 U.S. 32, 59

S. Ct. 3, 83 L Ed 26 (1938) .

Davis vs. Weht, 302 N.E.2d 382

(Zul. ABD. 1973). . « ee o

Durfee vs. Duke, 375 U.S. 106, 84

S. Ct. 242, 11 L Ed2d 186

(1963) . . 7 . . . - . - . 7 +

Ford vs. Ford, 286 So.2d 385 (La.

a: s+ «+ *« + *s * %

Forman vs. Forman, 496 S.W.2d

Ten. Co. App. 1973)...

Hardigan vs. Hardigan, 272 Ala.

73 So. (1961) ..

Janes vs. Francesco, 295 A.2d

GSS (ede LUTE) «© 0 6 0 e'e

Johnson vs. Muelberge or 340 U.S.

581, 71 8S. Ct. 4 95 L Ed

$52 (1951). . —

Kant vs. Kant, 272 So.2d 153

(S.C. Fla. 1973) - pp. 156-157.

ii.

6, 9,

11, 15

Kingdon vs. Foster, 238 Ga. 37

De a"« a6 «© 4% 6 eu

Leff vs. Leff, 102 Cal. Rep.

195 (Cal. App. 1972). ....

McCarthy vs. McCarthy, 276 N.E.

2d 891 (Ind. App. 891)....

Milliken vs. Meyer, 311 U.S.

457, 61 S. Ct. 339, 85 L Ed

Ste CAPGGPe we we wo ee eee

Podgorney vs. Great Central Ins.

Co., 311 N.E.2da 640 (Ind.

ms BUVGe wo ew eo es 6 © 6 8

Ratner vs. Hensley, 303 So.2d 41

7 3 Sp eee

Reinink vs. Reinink, 180 N.W.2d

57 (Mich. App. 1970). ....

Sherrer vs. Sherrer, 334 U.S.

ee Pere eee

“ta Ne Staley, 248 A2d 655,

App. 1368) ees 2 8 y

Thompson vs. Whitman, 18 Wall.

457, 21 L Ea 897 (1874) ...

Topham vs. L.L.B. Corp., 493 S.W.

2a 461 (Ten. 1973). . « « « «

Wheeler vs. Simmons, 206 So.2d

ee Ge SE 6 6 © 6 ee 6

Williams vs. North Carolina, 325

U.S. 226, 65S Ct. 1092, 89

iii.

» BS 2977 (4943 «we we eo eo we Me

Statutes

Art. IV, Sec. I, U. S.

Pee ee a ae a ee a

Amendment XIV, Par. 1, U. S. Con-

sti tution * > . . . * - * - - _ 3

28 U.S.C. §1738 (1948). ..... .3

Miscellaneous

47 Am. Jur.2d Judgments, §1254,

Pp- 249 . . . . _ . — o . 7. .* 7

50 C.J.S. Judgments §893, p. 497. .7

Necessity for Domicile in Two Party

Divorces, 52 Col. L. Rev. O02

(1963) ” . . - . . ° . . . ° . -10

Restatement; Conflict of Laws

(Supp. 1948) + . ° . 7 . . . . -10

Restatement, Judgments (1942). . . 10

iv.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1976

NO.

CAROL KINGDON FOSTER,

Petitioner,

vs.

GEORGIA PHILLIPS KINGDON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FOR THE STATE

OF GEORGIA

The Petitioner, CAROL KINGDON

FOSTER, prays that a Writ of Certiorari

issue to review the judgment of the Supreme

Court of Georgia rendered on November 23,

1976, and reaffirmed in a denial of a

Motion for Rehearing on December 14, 1976.

OPINIONS BELOW

The opinion of the Supreme Court

of Georgia reversing the decision of the

Superior Court of Fulton County, Georgia,

is reported in 238 Ga. Rep. 37, and is

appended in Appendix A, Infra, p. 1. The

order of the Trial Court with its find-

ings of facts and conclusions of iaw

enterec. by the Superior Court of Fulton

County, Georgia, is an unreported opinion

— is appended hereto in Appendix A, pp.

ele

JURISDICTION

The opinion of the Supreme Court

of Georgia was entered on November 23, 1976,

and the Motion for Rehearing was denied by

the Supreme Court of Georgia on December

14, 1976. This Court has jurisdiction

pursuant to 28 U.S.C. §§1257(3), 210l(c),

and Rule 22.3, Revised Rules of the Su-

preme Court of the United States.

QUESTIONS PRESENTED

I. WHETHER THE FULL FAITH AND CREDIT

CLAUSE OF THE UNITED STATES CONSTITU-

TION PREVENTS A PERSON WHO HAS A

PROPERTY INTEREST, WHICH IS AFFECTED

BY A FOREIGN DIVORCE DECREE BUT WHO

IS NOT IN PRIVITY WITH PARTIES TO

THAT JUDGMENT, FROM CHALLENGING IN A

SISTER STATE THE JURISDICTION OF THE

RENDERING COURT (THE ISSUE OF JURIS-

DICTION HAVING NEVER BEEN PREVIOUSLY

FULLY AND FAIRLY LITIGATED.)

II. WHETHER THE LAWS OF THE STATE OF

ALABAMA AUTHORIZE THE NULLIFYING OF

A JUDGMENT WHEN IT COMES TO THE ATTEN-

TION OF A COURT ASKED TO GIVE EFFECT

TO THAT DECREE THAT THE JUDGMENT WAS

RENDERED WITHOUT JURISDICTION AND AS

A RESULT OF FRAUD AND COLLUSION

BETWEEN THE PARTIES OBTAINING THAT

JUDGMENT.

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED

The statutes and constitutional

provisions involved are Art. IV, Sec. I

of the United States Constitution;

-2e

Amendment XIV, Paragraph 1 of the United

States Constitution, and 28 U.S.C. §1738

(1948). These provisions appear in

Appendix B, pp. 1-2.

STATEMENT OF THE CASE

This case arises out of a contest

between the Petitioner and the Respondent

over rights of inheritance involved in the

Estate of FRED WILLIAM KINGDON, JR., who

died a resident of the State of Georgia

in September, 1974. Petitioner was the

only child of the deceased. In connection

with the ‘proceedings in Probate, Petitioner

challenged the validity of Respondent's

marriage to the deceased on the grounds

that Respondent was still lawfully married

to one Harry Ragan Eidson, and consequently

was without capacity to contract another

marriage under the laws of the State of

Georgia.

In response to that allegation,

Respondent produced a divorce decree en-

tered in the Inferior Court of Equity in

Geneva County, Alabama, on July 27, 1961,

purporting on its face to grant a divorce

to her from Harry Ragan Eidson. Peti-

tioner sought to impeach that divorce

decree on the grounds that the Court in

the State of Alabama lacked jurisdiction

upon which to enter such decree, both

parties to that action being residents of

the State of Georgia at the time said

decree was entered. The Trial Court

found that the Respondent obtained the

decree by traveling to the City of

Roanoke, Alabama, and meeting with a

lawyer on two separate occasions. The

Trial Court also found that the Respondent

a» 9a

did not appear at the divorce proceedings

in Geneva County, Alabama, nor did she ever

travel to Geneva County, Alabama, to ob-

tain the divorce. The Trial Court also

found that all the proceeding papers were

signed by the Respondent and her husband

at an attorney's office located in the

City of Roanoke, Alabama. The Court also

found that the Petition for Divorce was

filed in the Inferior Court of Equity in

Geneva County, Alabama, on the 26th day

of July, 1961, and the Final Decree was

entered the following day.

Finding that the jurisdictional

issue was never fully and fairly liti-

gated in the State of Alabama (the Peti-

tion having been filed one day and the

decree granted the next, and neither party

having appeared before the Court), the

Trial Court determined that the Alabama

Court lacked personal and subject matter

jurisdiction at the time of rendering the

divorce judgment (neither party being

domiciled in Alabama), and, consequently,

the judgment was null and void and should

not be given any effect under the Full

Faith and Credit Clause of the United

States Constitution.

The Supreme Court of Georgia re-

versed the decision of the Trial Court and

ignored completely the non-adversary nature

of the proceedings in Alabama. It held

that collateral attack on the question of

lack of jurisdiction could only be main-

tained if the laws of the State of Alabama

authorize such a collateral attack on a

decree. The Supreme Court of Georgia

stated that the Full Faith and Credit

Clause does not permit inquiry into juris-

diction by a sister state unless such

odo

inquiry is authorized by the rendering

state. The Court held (contrary to the

findings of the Trial Court) that the

State of Alabama does not authorize col-

lateral attack on its judgments by

Strargers on the grounds of lack of juris-

diction over the person or subject matter.

REASONS FOR GRANTING THE WRIT

The Supreme Court of Georgia com-

mitted error in its decision by ignoring

the opinion of this Court and the line of

cases cited therein dealing with full

faith and credit found in Durfee vs. Duke,

375 U.S. 106, 84 S. Ct. 242, II L Ed2d

186 (1963), decided on December 2, 1963.

In that case Mr. Justice Stewart stated

that:

"However, while it is estab-

lished that a Court in one State,

when asked to give effect to the

judgment of a Court in another

State, may constitutionally in-

quire into the foreign court's

jurisdiction to render that judg-

ment, the modern decisions of

this Court have carefully delin-

eated the permissible scope of

such an inquiry. From these de-

cisions there emerges the general

rule that a judgment is entitled

to full faith and credit - even

as to questions of jurisdiction -

when the second court's inquiry

discloses that those questions

have been fully and fairly liti-

gated and finally decided in the

court which rendered the origi-

nal judgment."

-5-

Durfee vs. Duke, supra, at lll.

The record in this case reveals

that the question of jurisdiction was never

fully and fairly litigated in the Inferior

Court in Equity of Geneva County, Alabama.

In fact, as the record reflects, the

Petition for Divorce was filed on July

26, 1961, one day before the final judg-

ment was rendered. There was no semblance

of an adversary proceeding (the parties

were not present and did not even know

where or how the proceedings were occurr-

ing).

The opinion of the Supreme Court

of Georgia from which this Petition of

Certiorari arises is founded solely upon

the proposition that the Alabama divorce

decree cannot be collaterally attacked

by the Petitioner because she could not

have attacked that decree in the State of

Alabama. Johnson vs. Muelberger, 340 U.S.

581, 71S. Ct. ° LE (1951) is

relied on to sustain this proposition.

It is the opinion of Petitioner that the

Johnson case does not support the view

announced by the Supreme Court of Georgia.

The Supreme Court of Georgia, in

its opinion rendered on November 23, 1976,

(rehearing denied on December 14, 1976)

held that:

"We conclude that the

Alabama courts would not permit

Mrs. Foster to now attack the

1961 judgment of its court; and

the Full Faith and Credit Clause

will, therefore, not permit such

a collateral attack in the courts

-6§-

of this State."

ue vs. Foster, 238 Ga. 37 at

What the Supreme Court of Georgia

failed to consider was that the Full Faith

and Credit Clause of the United States

Constitution does not preclude inquiry into

the question of jurisdiction if the sister

state, wherein the judgment is attempted

to be recognized, determines that the ques-

tion of jurisdiction has never been fully

and fairly litigated in the court which

rendered the original judgment.

Thus, the Supreme Court of Georgia

in rendering its decision failed to follow

decisions of this Court which have held

that full faith and credit is to be ac-

corded only when the jurisdiction of

another state is not impeached either as

to subject matter or as to person. Thomp-

son vs. Whitman, 81 Wall. 457, (1874).

See also: Williams vs. North Carolina,

325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed.

1577 (1945).

This Court has held repeatedly

that a judgment can be enforced in a

sister state:

"..-only if the court of the first

1. purfee v. Duke, supra; Milliken v. ,

Meyer (1940), 311 U.S. 457, 61 S. Ct. 339,

85 L Ed 278. See also: 47 Am. Jur.2d,

Judgments, p. 249, §1254; 50 C.J.S. Judg-

ments §893, p. 497

~ =

State had power to pass on the

merits -- had jurisdiction

that is to render the judgment."

Williams vs. North Carolina,

Supra, at 229.

That is to say, the Court rendering the

judgment must have jurisdiction.

Where a divorce is concerned, the

power of the courts to grant decrees always,

under our system of law, has been founded

upon domicile. Andrews vs. Andrews, 188

U.S. 14, 23 S. Ct. ; Be vs.

Bell, 181 U.S. 175, 21S. Ct. 551 (1901).

This court, interpreting the full faith

and credit clause, has decreed certain

standards of procedural due process to be

observed before judgments changing the

status of parties to a marriage may be

accorded full faith and credit in a sis-

ter state. It seeks thereby to permit a

state to vindicate its social policy

against selfish action on the part of those

outside its borders.

"The State of domiciliary

origin should not be bound by

an unfounded, even if not con-

Clusive, recital in the record

of a court in another State."

Williams vs. North Carolina, supra,

at 230.

The Supreme Court of Georgia in

rendering its decision failed to recog-

nize those procedural due process stan-

dards which have been adopted by this Court.

aQeo

Contrary to the apparent view of

the Supreme Court of Georgia, the require-

ment of jurisdiction has not been changed.

Even without the Durfee vs. Duke, supra,

decision, Johnson indicates that the ques-

tion of jurisdiction is not foreclosed from

inquiry in the sister state unless that

question has been previously fully and

fairly litigated. As the language of Mr.

Justice Reed demonstrates:

". . . the framers intended

it [the full faith and credit

clause] to help weld the indepen-

dent states into San ane Sentehie

in ud nts within t urisdic-

tion ° he rendering state full

faith and credit in the sister

states as they would have in the

state of the original forum.

", . . It leaves each state

with power over its own courts

but binds litigants, wherever

they may be in the nation, by

prior orders of_other courts with

jurisdiction."

(Emphasis added)

Obviously, jurisdiction is a legitimate

matter of inquiry whenever the enforcement

of a foreign judgment is sought. 3

é Johnson v. Muelberger, supra, at 584-

585. See also: Cook v. Cook, 342 U.S.

126 at 128.

3 See 7 Durfee, 375 U.S. at p. 114, note

12, 84 S. Ct. 342, citing Restatement, Con-

flict of Laws, §451(2), (Supp. 1948), and

Thus, where full faith and credit

is claimed for a divorce decree in a sis-

ter state, inquiry is permitted into the

authority to render that decree unless

that issue has been previously full and

fairly litigated. Only when there has

been a true adversary proceeding in the

rendering court can further inquiry be pre-

cluded; and the Full Faith and Credit

Clause operates for the advancement of

justice rather than for the perpetuation

of a fraud.

The question presented in the

case at bar is one of importance because

of the necessity of adequately prescribing

the effect in other states of judgments of

sister states and for the adjustment of

domestic relations laws of the several

states as well as making certain that the

Full Faith and Credit Clause of the United

States Constitution is not used to perpet-

rate frauds on courts and third parties.

If this Court denies certiorari and allows

the decision of the Supreme Court of

Georgia to stand, all litigants in the

State of Georgia, as well as those in

other State Courts which are persuaded by

the reasoning of the Supreme Court of Georgia,

will be foreclosed from impeaching a judg-

ment which is impeachable under the de-

cisions of this Court authorizing inquiry

where the matter has not been previously

fully and fairly litigated and where the

decree affects a property interest of

a litigant who is not in

Restatement, Judgments, ch. 5, contem-

plates "Equitable Relief" for various rea-

sons. Sec. 117 contemplates the granting

of equitable relief from a void judgment

which "appears or purports to be valid."

-10-

privity with parties to that judgment.

Further, Petitioner urges this

Court to review this question where a true

stranger to the decree, under challenge for

lack of jurisdiction, has a property inter-

est which is being affected by the foreign

judgment. The previous decisions of this

Court deal only with challenges by persons

who were not strangers to the divorce pro-

ceedings, but rather were in privity with

parties, or parties themselves, or aided

in the obtaining of the divorce. Coe v.

Coe, 334 U.S. 378 (1948) (a party);

Sherrer vs. Sherrer, 334 U.S. 343 (1948)

(a party); Davis vs. Davis, 305 U.S. 32

(1938) (a party); Johnson vs. Muelburger,

supra (attack by children of party); Cook

vs. Cook, 342 U.S. 126 (1951) (subsequent

husband, but aided in obtaining divorce

by paying cost of trip to Florida and part

of legal expenses.)

Ze The decision of the Georgia

Supreme Court is in conflict with the fol-

lowing State and Federal Court decisions:

Reinink vs. Reinink, 180 N.W.2d

57 (Mich. App. 1970);

Ratner vs. Hensley, 303 So.2d 41

See: Necessity for Domicile in Two

Party Divorces, 52 Cd. L. Rev. 282, 283

(1953), which suggested that stranger

means only persons whose property inter-

ests are not affected by the decree. As

for property interest of Petitioner, see:

In Re: Est. of Kant v. Kant, 272 So.2d

153 (S.C. Fla. 1973) at pp. 156-157.

elie

[Fla. App. (1974)];

- Podgorney vs. Great Central Ins.

Co., 311 N.E,2d 640 (Ind. App.

1974);

Ford vs. Ford, 286 So.2d 385 (La.

App. 1973);

Davis vs. Weht, 302 N.E.2d 382

(Ill. App. 1973);

Janes vs. Francesco, 295 A.2d 633

(N.J. 1972);

Staley vs. Staley, 248 A.2d 655

(Md. App. 1968);

Comprehensive Mechandising Cata-

1 Inc. vs. Madison Ace Corp.,

;

ogs,

521 F.2d 1210 (7th Cir.

Topham vs. L.L.B. Corp., 493 S.W.

2g 461 (Ten. 1973);

Forman vs. Forman, 496 S.W.2d 243

(Tex. Co. App. 1973);

McCarthy vs. McCarthy, 276 N. E.2d

891 (Ind. App. 891);

Wheeler vs. Simmons, 206 So.2d 854

(Ala. 1968);

Leff vs. Leff, 102 Cal. Rep. 195

(Cal. App. 1972);

Abernathy vs. Chambers, 482 S.W.

2d 129 (Ten. 1972).

=32~

3. Decision of the Court below is

erroneous and conflicting with the law of

Alabama on the question of the ability of

a court to nullify a judgment presented for

enforcement when it comes to the attention

of that court that the judgment was ren-

dered without jurisdiction and obtained by

fraud and collusion between the parties.

As pointed out by the Trial Judge,

the most often cited expression of the Ala-

bama Courts’ ability to inquire into the

validity of its decrees for lack of juris-

diction is the case of Hardigan vs. Hardi-

gan, 272 Ala. 670, 128 So.2d 725 (1961).

An examination of this case reveals pre-

cisely a situation analogous to the case

at bar. In that case, the parties had no

standing to attack directly the divorce

decree. The suit involved a petition for

modification of a divorce decree. In the

proceedings before the Court it became

apparent to the Judge on the facts as pre-

sented by both parties that neither party

resided in the State of Alabama at the

time the divorce decree was rendered. The

Court stated that:

"Irrespective of whether the

plaintiff is in a position to at-

tack the decree awarding alimony

to the defendant, such decree can-

not stand because we have repeated-

iy held that where a void decree

is brought to the attention of a

Court, it is the duty of the Court

on its own motion to vacate the same.

Hardigan, supra, at 730.

This rule has been most recently

-13-<

restated by the Supreme Court of Alabama

in the case of Crisco vs. Crisco, 313 So.

2d 529 (May 8, 1975), where that Court

stated:

"A court is not without

jurisdiction to exercise its

inherent power to set aside and

vacate any time a judgment be-

cause of supervening invalidity

based on fraud practiced on the

Court by a party in the procure-

ment of a judgment apparent on

the face of the record.

"A natural and logical exten-

sion of this proposition is the

holding of this Court in Hardigan

v. Hardigan, 272 Ala. 67, 128 SO.

2a 725 (1561) . There, in uphold-

ing the lower Court's order vacat-

ing an original divorce decree,

the rule was laid down to the

effect that where jurisdiction of

a Court was fraudulently invoked

by the parties and this fact be-

came apparent in a subsequent pro-

ceeding, although neither party

attacked the validity of the origi-

nal decree which is regular on its

face, the Court is empowered ex

mero motu to set aside the decree.

"While the facts on which

Hardigan is based are restrictive,

the principle subordinate to its

holding is not so limited. That

principle authorized the Trial

Judge in the instant case, on

discovery of the facts not re-

vealed until the filing of the

petition for rehearing, to

-14-

correct his own motion for

fraudulent use of a judicial

process. We hold that the

action of the Trial Court in

vacating the original decree

of divorce and ordering a new

trial was necessary and justi-

fied in the exercise of its in-

herent powers to protect the in-

tegrity of its judicial proceed-

ings."

Thus, Petitioner urges this Court

to grant a Writ to review the decision of

the Supreme Court of Georgia, it being

clear that Alabama allows inquiry as to

jurisdiction when asked to enforce its

jwigments. This Court, as in Johnson,

supra, is the only Court available to the

Petitioner to correct the erroneous inter-

pretation of the law of a State committed

by the highest Court of a sister State.

CONCLUSION

For the foregoing reasons, this

petition for a Writ of Certiorari shoud

be granted.

Respectfully submitted,

AUL WEBB, °

Counsel for Petitioner

This 9th day of March, 1977.

-15-

APPENDIX "A"

31338. KINGDON v. FOSTER.

GUNTER, Justice.

This appeal presents the issue of whether the

Georgia courts must give full faith and credit to an

Alabama divorce judgment that is collaterally attacked,

by a person not a party to the Alabama judgment, on the

ground that the Alabama court lacked subject-matter

jurisdiction at the time of the rendition of the Alabama

divorce judgment.

The trial court ruled, in proceedings in which each of

the contesting parties had sought a summary judgment in

her favor, that the collateral attack could be made, that

the summary judgment evidence sustained the collateral

attack, that the Alabama divorce judgment was void, that

the appellant’s ceremonial marriage to Mr. Kingdon was

not a valid marriage, and that the appellant was therefore

not the widow of the deceased, her purported husband.

Summary judgment was rendered in favor of Mrs. Foster,

the sole surviving child of her deceased father, Mr.

Kingdon.

We have concluded that we must respectfully

disagree with the trial court’s judgment: we conclude that

the Alabama divorce judgment is not subject to collateral

attack, in the courts of either Alabama or Georgia, by a

person not a party to that judgment; and the judgment

below must be reversed.

Mrs. Kingdon, the appellant here. had married a Mr.

Eidson in 1951. Mr. Eidson was still in life when Mrs.

Kingdon married the deceased in 1968. Therefore, the

validity or the invalidity of the Alabama divorce

judgment, obtained in 1961 by and between Mr. and Mrs.

Eidson (now Mrs. Kingdon), is crucial as to whether Mrs.

Kingdon was the legal spouse of the deceased and his

widow, for inheritance purposes, after Mr. Kingdon’s

death.

Mr. Kingdon left a will, executed before his

ceremonial marriage to Mrs. Kingdon in 1968, in which

he left all of his property to his only child, Mrs. Foster.

Mrs. Kingdon contended that the will, executed before her

marriage to Mr. Kingdon, was revoked by that marriage,

and that Mr. Kingdon died intestate. Mrs. Foster

contended that the ceremonial marriage was invalid

because of the invalidity of the 1961 Alabama divorce

judgment, that the will was not revoked, and that Mrs.

Kingdon was not the widow of her deceased father.

Mr. Kingdon died in 1974; Mrs. Kingdon sought to

administer the estate of her husband whom she contends

died intestate; and Mrs. Foster brought an action in

equity that sought to enjoin Mrs. Kingdon’s ad-

ministration of the estate and sought to require Mrs.

Kingdon to produce the will, admittedly in Mrs.

Kingdon’s possession, for probate.

Mrs. Kingdon has appealed from the judgment

rendered below in favor of Mrs. Foster.

Whether Mrs. Foster can or cannot attack Mrs.

Kingdon’s 1961 divorce from Mr. Eidson, rendered in

Alabama, is the dispositive issue in this appeal. Mrs.

Kingdon, then Mrs. Eidson, filed the divorce action in

Alabama; Mr. Eidson, then a resident of Georgia, filed

responsive pleadings and submitted personally to the

jurisdiction of the Alabama court; Mrs. Eidson’s pleadings

and affidavit showed her to be a resident of Alabama, and

the Alabama 1961 judgment shows on its face that the

Alabama court had persona! and subject-matter

jurisdiction in the case.

Mrs. Foster's sole attack on the Alabama judgment is

based on the fact that in 1961 at the time of the entry of the

judgment, or at any time prior thereto, Mrs. Kingdon

(then Mrs. Eidson) was not a resident of Alabama, and the

Alabama court did not have subject-matter jurisdiction

for the rendition of a divorce judgment that terminated

the marriage between her and Mr. Eidson.

Mrs. Kingdon’s primary enumerated error here is:

“The divorce decree could not be collaterally attacked in

Alabama since plaintiff (Mrs. Foster) had no standing to

attack said decree and thus was barred from such attack |

in Georgia by the Full Faith and Credit Clause of the

Constitution of the United States.”

In Johnson v. Muelberger, 340 U. S. 581 (1951) the

Supreme Court of the United States held that when a

decree of divorce cannot be attacked on jurisdictional

grounds by parties who were actually before the court, or

by their privies, or by strangers, in the courts of the state

in which the decree was rendered, the Full Faith and

Credit Clause precludes their attacking it in the courts of

a sister state.

The opinion in Johnson v. Muelberger relied on the

case of Sherrer v. Sherrer, 334 U. S. 343 (1948) in which

the Supreme Court said: “This court has also held that the

doctrine of res judicata must be applied to questions of

jurisdiction in cases arising in state courts involving the

application of the full faith and credit clause where, under

the law of the state in which the original judgment was

rendered, such adjudications are not susceptible to

collateral attack.” P. 350.

In Woody v. Woody, 91 Ga. App. 806 (87 SE2d 222)

(1955), the Georgia Court of Appeals explicitly ac-

knowledged the Johnson v. Muelberger rule in the full

faith and credit area. So far as we have been able to

determine, the Johnson v. Muelberger rule has never

been relied on, referred to, or cited in the opinions of this

court on the issue of collateral attack upon the judgment

of a sister state.

Therefore, it follows that if Mrs. Foster could not

attack the 1961 divorce judgment today in the Alabama

courts, she cannot attack it in the Georgia courts.

In Aiello v. Aiello, 272 Ala. 505, 510 (133 S2d 18)

(1961) the Supreme Court of Alabama said, in language

that was not necessary to a decision in that case, that the

complaining party had no standing to collaterally attack

a divorce judgment. That court said: “He was not a party

to the divorce suit. We do not think he possessed, at the

time the divorce decree was rendered, any right which

was adversely affected by that decree. It does not appear

that he stands in privity with either party to the divorce

suit. He cannot derive any right from the respondent, the

woman he purportedly married in 1950, because, if the

1950 marriage is void as he says it is, then no right could

pass to him by a void marriage; and, if the marriage be not

void, then he is still the husband of the respondent and

cannot have their marriage annulled, as he seeks to have

done by this suit.” P. 22.

Yerger v. Cox, 281 Ala. 1, 5 (198 S2d 282) (1967)

adopted and affirmed the language used in Aiello and

said: “In the instant case, the allegations of the bill do not

show that the decree divorcing the Coxes was void on its

face. The bill does show that the complainants are

strangers to the decree, that they occupy no status and

had no rights which were or could have been affected by

the decree at the time it was rendered. No right attempt-

ed now to be asserted was acquired by either the

complainants or their father, the second husband, prior to

the rendition of the decree.” P. 286.

Weisner v. Weisner, 282 Ala. 626 (213 S2d 685)

(1968) followed Yerger v. Cox and denied collateral

attack.

We conclude that the Alabama courts would not

permit Mrs. Foster to now attack the 1961 judgment of its

court; and the Full Faith and Credit Clause will therefore

not permit such a collateral attack in the courts of this

state.

A recent decision of the Appellate Court of Illinois,

Fourth District, is in accord with what we have ruled here.

In Alikonis v. Alikonis, 36 Ill. App. 3d 159, 163 (343 NE2d

161) (1976) that court said: “In the instant case defendant

had no pre-existing rights at the time of plaintiffs

Alabama divorce and that decree is not shown to be void

on its face. That decree, therefore, would not have been

subject to collateral attack by defendant in the state of

Alabama.”

The 1961 Alabama judgment must be accorded full

faith and credit; and Mrs. Foster is prevented from

attacking it on the ground that the Alabama court that

rendered it lacked subject-matter jurisdiction.

Judgment reversed. All the Justices concur, except

Hall, J., who concurs in the judgment only.

ARGUED JULY 14, 1976 — Decipep NovemBeEr 23, 1976 —

REHEARING DENIED DECEMBER 14, 1976.

Probate of will, etc. Fulton Superior Court. Before

Judge Etheridge.

Garland, Nuckolls, Kadish, Cook & Weisensee, O.

Jackson Cook, Cliffe Lane Gort, Robert W. Hassett, for

appellant.

Webb, Parker, Young & Ferguson, David E. Betts,

Paul Webb, Jr., Bertram S. Boley, for appellee.

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CAROL KINGDON FOSTER,

Plaintiff,

CIVIL ACTION

FILE NO. C-3042

)

vs. )

)

GEORGIA PHILLIPS KINGDON)

)

Defendant.

STATEMENT OF FACTS

The above styled case arose out of a

contest that resulted in the Probate Court of

Fulton County, Georgia, in regard to the ques-

tion of right of inheritance from the estate

of Fred William Kingdon, Jr. The Plaintiff

is the only child of the deceased and took the

position that the Last Will and Testament of

her father should be filed for probate. The

defendant took the position that the Last will

and Testament of the deceased was not appli-

cable because of her marriage to him, that

rendered the Last Will and Testament of the

deceased, Fred William Kingdon, Jr., null and

void.

The issue that developed upon which this

lawsuit was based is whether or not defendant

is a lawful wife under the laws of the State

of Georgia of the deceased, Fred William

Kingdon, Jr. This case came before the

Superior Court of Fulton County, Georgia,

instead of being handled by the Probate Court

of Fulton County, because of the decision of

the Georgia Supreme Court in the case of

Logan vs. Nunnelly, 230 Ga. 588 (1973), which

held that a procedural attack of a foreign di-

vorce decree could not be maintained in the

Probate Court which, prior to the Civil Prac-

tice Act, could entertain such an attack.

Therefore, the above styled case is re-

lated to the proceeding of the Probate Court

of Fulton County, Georgia, in which the ques-

tion of inheritance is still pending.

The plaintiff filed a Motion for Summary

Judgment based on deposition of the defendant

and various affidavits, and the pleadings.

The facts as presented show the follow-

ing:

On September 12, 1974, Fred William

Kingdon, Jr. died a resident of Fulton County,

Georgia. At Mr. Kingdon's death his sole and

only child survived him, who is the Plaintiff

in this action. On the death of Fred William

Kingdon, Jr. he left a certain document pur-

porting to be his Last Will and Testament

which was executed on May 27, 1966. Under

said document he bequeathed his entire estate

to his daughter, Carol Kingdon Foster, and

named her Executrix.

This purported Last Will and Testament

of Fred William Kingdon, Jr. was in the

custody of defendant who refused to offer it

for probate or file it with the Fulton County

Probate Court. Instead, defendant filed her

Application for Letters Testamentary and

appointment as Administratix of the estate of

Fred William Kingdon, Jr., alleging that he

died intestate. Before the return date on

defendant's application for Letters of Admin-

istration, the plaintiff filed a caveat to

the application and, subsequently, on February

12, 1975, filed this equitable action.

Defendant contends that the Last Will

and Testament of Fred William Kingdon, Jr. is

null and void since it was executed prior to

her marriage to Mr. Kingdon on June 12, 1968.

Defendant did, in fact, go through a cere-

monial marriage with the deceased on that

date.

Prior to this ceremonial marriage that

took place between defendant and decedent,

the defendant had married one Harry Ragan

Eidson on November 22, 1951 in Fulton County,

Georgia.

On July 27, 1961, the Inferior Court of

Geneva County, Alabama, entered a divorce

decree in favor of defendant from Harry Ragan

Eidson, which on its face dissolved her

Georgia marriage to Harry Ragan Eidson. In

connection with this divorce decree, defen-

dant executed an affidavit stating that she

was a bona fide resident of the State of

Alabama, giving no facts to support this

statement.

In obtaining this divorce, defendant

traveled to the City of Roanoke, Alabama, and

met with a lawyer there on two separate occa-

sions. Defendant did not appear at the di-

vorce proceedings in Geneva County, Alabama,

nor did she ever travel to Geneva County,

Alabama, to obtain the divorce. All the pro-

ceeding papers were signed by the defendant

at an attorney's office located in the City

of Roanoke, Alabama.

The petition for divorce was filed in

the Inferior Court of Geneva County, Alabama,

on July 26, 1961, one day before the final

decree was entered. At the time defendant

filed said complaint in the Inferior Court

of Geneva County, Alabama, seeking a divorce,

she was a registered voter in Cobb County,

Georgia, and under an employment contract

with the City of Atlanta Public Schools,

State of Georgia, for the school year begin-

ning in the fall of 1961. Defendant testi-

fied by deposition that she was in Alabama

for approximately one month and that she went

to Alabama for the purpose of determining if

she could find a suitable place to establish

a dog kennel. If she was successful she

intended to move to the State of Alabama.

She further testified that she was unsuccess-

ful in her search and did not move to the

State of Alabama. She further stated that

she had not established her home anywhere in

the State of Alabama nor lived in any partic-

ular place in Alabama, but was constantly

moving around in her unsuccessful search for

finding a suitable place to establish a

kennel.

The evidence further shows without dis-

pute that defendant was enrolled as a resi-

dent student at Georgia State University

during the summer of 1961, and also enrolled

in the fall of 1961 as an in-State resident

student. The evidence further shows, with-

out dispute, that in order for one to qualify

to be an in-State resident student at Georgia

State University during this time, one must

have lived in the State of Georgia for 12

consecutive months prior to the quarter in

twhich a student enrolled as a resident student.

By her enrollment at Georgia State University

as an in-State resident student, defendant

was affirmatively representing to the Georgia

State University that she had been a resident

of the State of Georgia for 12 consecutive

months prior to the time of enrollment.

Harry Ragan Eidson, the person to whom

defendant was married on November 22, 1951,

was alive on the day that Fred William

Kingdon, Jr. married the defendant and, fur-

thermore, Mr. Eidson was alive when the above

styled action was instituted by the plaintiff

against the defendant.

Immediately following the death of Fred

William Kingdon, Jr., plaintiff questioned

the existence of a divorce decree from Harry

Ragan Eidson, and defendant, in response to

this, produced a decree granted by the In-

ferior Court of Geneva County, Alabama.

Immediately thereafter, plaintiff filed a

caveat to defendant's application for letters

of administration.

The plaintiff, by way of deposition,

immediately sought to determine the facts

surrounding the divorce decree rendered by

the Court in Geneva County, Alabama. After

obtaining those facts from the defendant,

plaintiff promptly filed this action in the

Superior Court of Fulton County, Georgia, to

overturn that divorce decree.

CONCLUSIONS OF LAW

"A divorce decree obtained in a

sister State in consequence of

false representations by the par-

ties as to their residence in that

State is a nullity and may be

collaterally attacked in any Court

of this State by any person not a

party thereto who is materially

and adversely affected by such

decree."

Cole vs. Cole, 221 Ga. 171 (1965).

Carol Kingdon Foster, the plaintiff, is

the daughter of the deceased and the sole

beneficiary under his Last Will and Testament

and has a material interest in the matter so

that she certainly has standing to attack the

Alabama divorce decree as fraudulent, inas-

much as if it be a valid decree, it effec-

tively disinherits her against the wishes of

her father. Grace vs. Carter, Exec., 207

Ga. 308.

The Supreme Court of Georgia has consis-

tently recognized the right of parties to in-

quire as to the validity of foreign divorce

decrees in situations involving right of

inheritance of a deceased person in the de-

termination of who are the proper heirs of

the deceased. The most recent such inquiry

is found in the case of Azar, Adm., vs.

Thomas, 206 Ga. 588 (1950), when the Supreme

Court of Georgia authorized an inquiry into

the facts almost identical to the case at bar.

The Azar, supra, case involved a suit in

equity brought by the Administrator of the

estate of Mary A. George, deceased, seeking

to cancel an alleged void marriage between

the deceased and the defendant, and to re-

cover assets belonging to the estate of the

deceased, which assets were being held by

the defendant. Plaintiff, in establishing

the invalidity of the 1932 marriage, intro-

duced evidence that tended to show that a

Tennessee divorce proceeding which appeared

on its face to dissolve the previous marriage

of the defendant was invalid because the de-

fendant had practiced a fraud on the Tennessee

Court. The Supreme Court found that the de-

fendant was not legally domiciled in Tennessee

and Tennessee relied on constructive notice

in granting the divorce in an ex parte pro-

ceeding. The Trial Judge had refused to con-

sider the evidence as to fraud in the pro-

curement of the divorce in Tennessee and

there was a judgment rendered for the defen-

dant. The Georgia Supreme Court reversed the

Trial Court, and said the following:

"A foreign decree of divorce may

be collaterally attacked upon the

grounds of fraud in its procure-

ment and lack of jurisdiction

without offending the full faith

and credit clause of the Constitu-

tion of the United States. . ."

The case at bar involves the same type

of inquiry as was expressly allowed in Azar

vs. Thomas, where the Supreme Court of Georgia

expressly authorized such an inquiry by a

third party not in privity with the defendant

or the former spouse of the defendant.

Under the decisions of this State (Cole

vs. Cole, supra,) this Court clearly has

authority to inquire into facts surrounding

the jurisdiction of the Courts of the State

of Alabama to award judgments, and if it de-

termines that the facts are such that they

clearly show that there was no jurisdiction

of the Alabama Court, to award a divorce be-

tween the parties, it is required to treat

the divorce decree as void.

The full faith and credit clause of the

Constitution of the United States requires

that judgments of sister states can only be

attacked for lack of jurisdiction when such

collateral attack of judgment is authorized

in the State which rendered the decision.

Clearly, Alabama authorizes collateral

attacks of its judgments. This fact was most

recently affirmed in the case of Zeanah vs.

Burger, 314 So.2d 700 at p.703 (Alabama

Court of Appeals 1975), where the Court

stated:

"Without deciding whether defending

a petition permit for mandamus for

enforcement of a judgment by plead-

ing want of jurisdiction as a

collateral attack, we find no prob-

lem in holding that even ina

collateral attack, lack of juris-

diction of the Tribunal rendering

the judgment void is available as

a defense.”

The Alabama Supreme Court further stated

in the case of Crump vs. Knight, 56 So. 625:

"It is well settled law that

every Court has full authority

to determine whether or not it

has jurisdiction of a subject

matter in the parties presented

by pleadings and evidence and if

it once determines that it is

without jurisdiction of the

subject matter, it should not

proceed further. Courts acting

without authority can impart no

validity to their proceedings

and their judgments are assail-

able in any proceeding."

Furthermore, in the case of Dawkins vs.

Hutto, 131 So. 228 (1930), the Alabama

Supreme Court further stated:

"Judgment void for want of

jurisdiction is open to contra-

diction or impeachment in col-

lateral proceedings."

The most often cited expression of the

Alabama Courts' ability to inquire into the

validity of its decrees for lack of juris-

diction is the case of Hardigan vs. Hardigan,

272 Ala. 670, 128 So.2d 725. An examination

of this case reveals precisely a situation

analogous to the case at bar. In that case,

the parties had no standing to attack direct-

ly the divorce decree. The suit involved a

petition for modification of a divorce de-

cree. In the proceedings before the Court

it became apparent to the Judge on the facts

as presented by both parties that neither

party resided in the State of Alabama at the

time the divorce decree was rendered. The

Court went on to state that:

"Irrespective of whether the

plaintiff is in a position to

attack the decree awarding

alimony to the defendant, such

decree cannot stand because we

have repeatedly held that where

a void decree is brought to the

attention of a Court, it is the

duty of the Court on its own motion

to vacate the same."

This rule has been most recently restated

by the Supreme Court of Alabama in the case

of Crisco vs. Crisco, 313 So.2d 529 (May 8,

1975), where the Alabama Supreme Court stated:

"A court is not without juris-

diction to exercise its inherent

power to set aside and vacate any

time a judgment because of super-

vening invalidity based on fraud

practiced on the Court by a

party in the procurement of a

judgment apparent on the face

of the record.

"A natural and logical extension

of this proposition is the hold-

ing of this Court in Hardigan vs.

Hardigan, 227 Ala. 67, 128 So.2d

725 (1961). There, in upholding

the lower Court's order vacating

an original divorce decree, the

rule was laid down to the effect

that where jurisdiction of a

Court was fraudulently invoked

by the parties and this fact be-

came apparent in a subsequent

proceeding, although neither

party attacked the validity of

the original decree which is

regular on its face, the Court

is empowered ex mero motu to set

aside the decree.

"While the facts on which Hardigan

is based are restrictive, the

principle subordinate to its holding

is not so limited. That

principle authorized the Trial

Judge in the instant case, on

discovery of the facts not re-

vealed until the filing of the

petition for rehearing, to

correct his own motion for

fraudulent use of a judicial

process. We hold that the

action of the Trial Court in

vacating the original decree

of divorce and ordering a new

trial was necessary and justi-

fied in the exercise of its

inherent powers to protect the

integrity of its judicial pro-

ceedings."

Since judgments are subject to collateral

attack in Alabama, the constitution command

of full faith and credit as implemented by

Congress, requires that it be subject to such

attack in any other State. Dupree vs. Duke,

375 U.S. 106, 11 L.Ed. 2d 18 ); State

of New York, el rel Handley vs. Handley, 330

U.S. 16, 91 Ba 1133. 1133.

As to the issue of whether or not defen-

dant was domicile of the State of Alabama, it

is needless to belabor the facts in this case.

The facts, without contradiction, demand a

conclusion that defendant never established

a domicile in the State of Alabama and, there-

fore, the Alabama Court did not have juris-

diction to grant her a divorce decree from

Harry Ragan Eidson. As was stated by the

Supreme Court of Georgia in the case of Clark

vs. Hammock, 228 Ga. 157 at 158, quoting an

Old decision of Worsham v. Ligon, 144 Ga.

707, 71ll:

"If a person leaves the place

of his domicile temporarily, or

for a particular purpose, and

does not take up an actval resi-

dence elsewhere with the avowed

intention of making a change in

his domicile, he will not be

considered as having changed his

domicile."

Without contradiction defendant's testi-

mony reveals that she went to the State of

Alabama for the purpose of locating a place

to establish a dog kennel which she could

handle. She was unable to locate such a

place and, therefore, returned to the State

of Georgia. Clearly, her intention to move

to Alabama was conditional and, further, she

did not take up an actual residence in the

State of Alabama.

Defendant asserts that the question of

residence and domicile are factual ones and

must be submitted to the jury and cannot be

decided as a matter of law. However, the

Court of Appeals in the case of Pugh vs.

Jones, 131 Ga.App. 600 at 605 points out

that such a rule does not apply in cases

where the evidence establishes a plain and

plausible case that should be determined by

the Court as a matter of law. The Court

goes en to state:

"Thus, in Commercial Bank vs.

Pharr, 75 Ga. App. 364, 377

(43 SE2d 439) this court held

that ‘Although the rule is well

settled in this state that

domicile or residence is one

of the facts for the jury in

cases where the evidence is

in conflict [cit.], on the

other hand, where the evi-

dence is not in conflict, we

are of the opinion that this

is a question of law for this

court." See also Patterson v.

Patterson, 208 Ga. 7, 13

(64 SE2d 441) where the Supreme

Court held '. . .[{I]f the evi-

dence demands a finding that

there has not been a change of

domicile, the court may by

proper instructions withdraw

the question from the jury.'"