Appendix — Porter v. Porter

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wiry Ts, = - , Aas o

JAN 20 1967

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| JOHN F. DAVIS, CLERK | [

IN THE =: _

; Supreme Court of the United States

Ocroser T ERM, 1966:

No. ....@2..02...4..

' PEARLINE PORTER, PAULINE P. LEONARD

and — * C. KEMBLE, Trustee,

Petitioners,

S.- ;

GLADYS E. PORTER,

Respondent.

* APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARIZONA

DANIEL CRACCHIOLO .

e 7 WILLIAM ‘P. FRENCH

567 First National Bank Building

ccs Arizona 85002 -

niin W. BEER ™

Seventh Floor, Luhrs Cee.

Phoenix, Arizona 85003

Attorneys for Petitioners

10.

TABLE OF CONTENTS

PAGE:

. Opinion of the Arizona Supreme

Court, 101 Ariz.-131, 416 P.2d

. Opinion of the Arizona Court of

Appeals, 1 Ariz. App. 363, | piers

403 P.2d 298 (June 21, 1969)... ccc-cevsenvonseees eae

. Opinion of the Idaho Supreme

Court, 84 Idaho 400, 373 P.2d :

BST (OE 18 TI cei Sbhavektaen ana ae

. Separate Maintenance Dectee of ~

Superior Court, Maricopa County, —

Arizona (A.R. pp. 31-3G)............-.... na eo ohdatieines 60

. Complaint in Idaho Divorce Action

(Seem BB OR PATE cic ee Ara ror aay 63°

- Answer and: Counterclaim in Idaho

Divorce Action (Supp. .A.R. pp. 12-37)... 69

. Findings of Fact and Conclusions |

of Law of the Idaho Divorce Court en

CAT, BO. HOSED oeciccneccvinscscincces TSE Se

Judgment and Decree of Idaho Divorce |

Court (ALR. pp. 323-37) ceessosescsedevectesecenepestiecnee 96

Deeds, Assignment, and Release of _

Judgment Executed by Respondent .

, CAR, pp. S44AD) -..n2.-cenecccecnsosennyeceensenconsessenesceensensi 104

Petitioner Kemble’s Supplemental

Complaint in Intervention, Arizona ‘

Separate Maintenance Actién — att ”

SE BE TEE Shidlicdcdee 107

,¢

‘12.

. 14.

EDI TE I ie Oe ERE NBO CADE ORS Te TOD DG,

Sa

Argon ete ST athe:

* ial PR a: ANE |

PRIA teats atl uee 2 F

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Ri.

18.

PAGE

Petitioners Porter and Leonard’s

Supplemental Complaint in

Intervention, Arizona Separate ;

Maintenanee Action (A.R. pp. 124-31) -.........--------- ..112

Proceedings in Trial Court, Superior

Court, Maricopa County, Arizona .

I o, ocee vera 116

Petitioners’ Motion for New Trial,

Superior Court, Maricopa County, . . aes

Saees (OR. oe. 16244) ............... = 119

Petitioner _Kemble’s: Motion for

. Rehearing in the Arizona

EEE I AST Oe 9

Petitioners Porter and Leonard’s

Motion for Rehearing in the _

Arizona Supreme Court:............... ecshareaitescianicicessneonsines OAD

Order of Arizona Supreme Court

Denying Petitioners’ Motions ~

for Rehearing (October 25, 1966) Sean NCAR OR. oN 155

Idaho Rules of Civil Procedure,

Rule 24 oe Retest iiesrteatanviccbrentrsinresevensavensdceren 156.

Idaho Statute Allowing Suits |

Against Partnership Organizations 3

by Name (Idaho Code, § 5-323) ..............:scsseecceeeeeees 157

eh mi calms ba net nar meee aan Sa | ier Partai . Se ee

|

1. OPINION OF THE: ARIZONA SUPREME COURT

101 Ariz. 131, 416 P.2d 564 (July 14, 1966)

ett <> ~~

LS wor ——

fn the Supreme Court

OF THE STATE OF ARIZONA

Tn Banc ° =) :

PEARLINE PORTER, PAULINE

P. LEONARD and GEORGE C: | |

KEMBLE, ~~ oe |

Appellants, No. 7594 PR

V.

GLADYS E. PORTER,

Appellee. . mi

TRIAL COURT AFFIRMED

Opinion of the Court of Appeals, 1 Ariz. App. : :

363, 403 P.2d 298 VACATED 7 nr ae

_ Beer & Polley, Phoenix,

Attorneys for Appellants Pearline Porter and r

Pauline P. Leonard,

” Kramer, Roche, Burch & Streich, Phoenix, and

: Charles L. Hardy, Phoenix,

, - Attorneys for Appellant George C. Kemble,

W. Francis Wilson, Phoenix, and OO

_ Richard-A. Wilson, Phoenix, -

_ Attorneys for Appellee Gladys E. Porter. |

EEE

ee”

BERN STEIN; Vice Chief Justice

Pursuant to 17 A.R-S. Rule 47(b),. Rules of the odes

Court and A.R.S. §12-120.24, we granted a petition to review

the’ decision of the Court of Appeals, Division 1, reported in

L Ariz. App. 363, 403 F.2d 296...

” The history of this protracted, litigation is detailed in the

Court of Appeals decision as well as Kemble v. Stanford, 86 Ariz, ° -

‘392, 347 P.2d-28;.Porter v. Stanford, 86 Ariz. 402, 347 P.2d :

35, cert. den. 371 U.S. 829, 83 S.Ct. 23, 9 L.Ed. 2d 66 and

Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155. We will. merely

highlight the pertinent facts. On May 14, 1959 Gladys E. Porter,

appellee, obtained an Arizona” judgment for separate maintenance

after constructive service upon her husband Arnold: Porter by

publication and registered mail which he acknowledged. She had

attached the Arizona Hotel in Phoenix when she filed her com-

-plaint which described. the hotel as community property. The

judgment imposed a lien on the hotel in excess of $25,000 for

support payments of $3,000 monthly which were later reduced

to $1,000 per month. On July 21, 1959 the trial court entered a

judgment determining the arrearage due under the separate main-

tenance judgment and three days later Gladys obtained execu-

tion and levied upon the hotel to satisfy an amount over $31,500.

The July 21, 1959 judgment was a final judgment. McClanahan

- v. Hawkins, 90 Ariz. 139, 367 P.2d 196. The sheriff's sale was

held August 20th and all of Mr. Porter's interest in.the hotel

was sold to Gladys who received a sheriff's deed April 7, 1960.

_ Asa result of the sale and upon receipt of this deed, Gladys became

_ the sole owner of any interest in the hotel which she and Arnold —— ae

had theretofore held as community property as well as any re

est which Arnold held as his‘separate property. A.R.S. §25-34

Eleven days after the Arizona separate maintenarice jadgmient

was entered, Arnold Porter sued Gladys for divorce in Idaho.

Ske answered seeking full faith and credit for the Arizona ay

ment and participated in* the. Idaho divorce proceedings. On

December 28, 1960 nearly seventeen months after si a

i PE cits

eg

. (ane

Arnold’s interest in the Arizona Hotel at the sheriff's, sale and

nine months after she obtained the deed thereto, the Idaho court -

refusedsto give the. Arizona judgment full faith and credit. Fur-

‘ thermore, that court found that the Arizona Hotel was owned

by.a partnership ‘in which Gladys and Arnold had an interest as

community praperty. Arnold Porter was awarded all community

property interest in the partnership which owned the hotel -and

Gladys was given ten days to “execute and deliver unto (Arnold.

Porter) a transfer and conveyance of all right, title, interest and

~ equity . . . that the defendant (Gladys) has in those properties .

-known as “a ‘Arizona Hotel . . .” Pursuant to the court’s com-

mand, Gladys executed cialis “deeds and assignments of “her

interest in the hotel. be El

This appeal arises out of. appellants’ intérvention in Gladys’

‘separate maintenance action wherein appellants alleged that the

" Arizona Hotel was owned by: a partnership in which they to-

gether with Arnold Porter had an interest. After the Idaho judg-

ment was rendered, appellants filed supplemental complaints in

intervention seeking: full faith and credit for the Idaho xcourt’s

judgment that the hotel was’ owned by a partnership and that

~ Gladys had no further interest in the Arizona Hotel by virtue of

the quitclaim deed, assignment and release of the Arizona judg-

ment. U.S. Const. Art. IV, §1; 28 US.C.A. §1738.. Trial was

had on December 18, 1961 ini the Superior Court of Maricopa

———County. Documentary evidence was introduced but there was no .

testimony. The trial court granted a on verdict: for Gladys

and this appeal followed. _

Certain facts must be emphasized to properly frame the problem

before us. In Porter v. Stanford, supra, this court said:

It (the,trial court) had jurisdiction of thé parties

’ (Gladys and Arnold) and of the subject matter of the

Jitigation and jurisdiction to enter an order in such amount

.as it deemed proper for (Gladys and the children) sup-

* port pradente lite.” ;

4

ip

‘ : * * *

- It also hee authority ‘not only to order: is husband

“e pay such amount pendente lite but it also ‘had author- .

3 ity to direct a receiver of the community property to do so.’

J : * * * \ ; ;

- “\. The presumption that it is community property (the

Arizona Hotel) therefore obtains and will continue to

prevail in favor of ‘Gladys E. Porter until it is destroyed —

‘\ by- evidence to. the cantrary. ” 86 Ariz. 406-407. \-

“Arnold Portér has’ never attempted to introduce evidente re-

busting the, presumption. There is.a presumption that real prop-

" erty owned by husband and wife is community property, and

_ nearly conclusive ‘evidence is required to overcome the presump-

~ tion which alone will support a judgment. Kennedy v. Kennedy, ,

ee, Ariz. 252, 379 P.2d 966. _ mr ,

‘ “s Payments for separate maintenance become vested when they

‘become due ‘and cannot’be modified thereafter. McClanahan v.

Hawkins, supra. A judgment based upon such payments is en-

titled to full faith arid credit. Sistare .v. Sistare, 218 US. 1, 30

S.Ct. 682, 54 L.Ed. 905. 2

No authority need be cited to support the validity of a separate’

maintenance judgment where a resident“spouse attaches property

in Arizona and serves the nonresident spouse by registered mail

. as provided in Rule 4(e), 16 A.R.S..Porter v. Duke, 34 Ariz.

_ 217, 270 P. 625. The court has jariadittion to determine the’

rights of the nonresident spouse in the attached property. 24 Am. °

Jur.2d Divorce and Separation, §§546, 935, 995. We have recog-

nized the validity of a separate maintenance suit which based

- jurisdiction over a nonresident spouse.upon the fact that-com-

munity real property was attached in the state. White v. White,

83 Ariz. 305, 320 P.2d 702. Moreover, we have recognized that «

a lien in favor of the wife may attach to the husband’s: share of

‘community owned partnership property. Spector v. Spector, 94 .

- Ariz. 175, 382 P.2d.659. In this regard, we nok that partnership

6°

~ * court may have erred in refusing to grant full faith and credit

- to the’ Arizona judgments. Gladys appealed that part of the 2"

Sistas hedaman ld thle Oni apace ate S ‘ hts baile forest

7

assets acquired dision « coverture are community | property and be-

long to both spouses. Coe v. Winchester, 43 Ariz. 500, 33 P.2d

286. The sheriff may sell the attached property, “whether separate

or community, to satisfy.a judgment for past due support pay-

ments and the nonresident spouse is bound by ‘the sheriff's sale to

the ‘extent of his interest in the property. Pennington v. Fourth

' National Bank, 243 U.S. 269, 37 S.Ct. 282, 61-L.Ed. 713.

‘The above principles will be referred to as we rey prob-

lem beforé us. Stated most simply, the issue“is whethe

court erred in directing a verdict fer Gladys based on the con-

clusion that appellants failed to prove the Arizona Hotel was

‘owned by a partnership. Apart from the documentary evidence :

e trial ©

which we shall consider subsequently, appellants relied’ primarily .

Idaho ‘judgment is entitled to full faith’ and credit. We think not.

and credit’ to the Idaho judgment..Instead, we are asked to give it

greater credit than the prior Arizona judgments. We do not think

the full faith and credit clause requires sucha conclusion.

In the first place, the Idaho court was obliged to give full faith

and credit to the Arizona separate mairitenance judgment and to

the later judgment based upon the arrearage for support payments.

Pursuant to these judgments, Gladys obtained all of Arnold’s in-

terest in the hotel which thereafter was her separate property.«

We.pointed out above that as between Gladys and Arnold, there

was adjudication that she owned his intergst in the hotel and there

was no community property interest in the hotel. That adjudica-

-* upon the’ Idaho judgment. Hence, we must decide. whether the 9

“We note that appellants do not ask us’ to merely give full faith —

tion was entitled to’ full faith and credit in the Idaho trial court. ©

American Exp. Co. v. Mallifs, 212 U.S. 311, 29, S.Ct. 381, 53

CL Ea. 525. The: Idaho Supreme Court recognized that its trial

divorce decreé which prohibited her from maintaining, institut-

7 ing or prosecuting any action affecting the Arizona Hotel and the ©

ee eee

3 oe _ 6

‘Idaho winged Court said the judgment was too broad . because:

. This enjoinder will prevent. appellant from exercis-

ing any rights ‘which she may have outside the present .

action and to all: rights which may enure to her in the

aie: future by virtue of this decree or otherwise.”: Porter v.

,. Porter, 84-Ida. 400, 373 P.2d 327, 332. — sup-

plied) ; 2

The Idaho judgment is ‘fatally thee: because it failed to

give the prior valid Arizona judgments full faith. and credit and,

therefore, is not entitled ‘to full faith and credit by. this court.

Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. -464;

Dixon v. Dixon, 76 N.J-Eq. 364, 74 Atl. 995; Hanna v. Sted- |

~man,. 230 N.Y. 326, 130 N.E. 566...

Secondly, the Idaho judgment is ‘not entitled to full faith and .

credit because the Idaho court had no jurisdiction, power or author-

__ ity in the divorce proceeding to enter an order distributing prop-.

_ erty: which: was .Gladys’ separate property and not community

_ property. At the sheriff's sale; Gladys acquired all of Arnold’s in-

terest in the Arizona Hotel and it follows that the hotel was not

community property thereafter. Idaho is a community property

state and the court “divides” the community property only when

it grants. a divorce. Idaho Code §32-712. The Supreme Court of.

Idaho -” said that: -

. The court has the power wend said section (32-712)

™ divide the community property between the parties,

_but-has no power or authority to award the wife's ‘Separ-

-gte-property, or any part of it, to the husband.” Heslip ve

- Heslip, 74 Idaho 368, 262 P.2d 999, 1002. <Emphasis

ee supplied ) | ' ee;

‘. It is axiomatic that full faith and credit- need not be given to the

judgment of the Idaho court because it acted without jurisdiction.

Estin v. Estin, 334 US. 541, 68 S.Ct. 1213, 92 L.Ed. 1561.

There is.a third reason why the Idaho’ judgment i is not entitled ©

to full faith and’ credit. A “foreign judgment will not be given

7

greater effect than ‘a domestic judgment on the same issue. ’ This

court has held that the Arizona Hotel was community property

as between Gladys and Arnold by virtue of a strong presumption

which was never overcome and has recognized that Gladys Porter

. could obtain Arnold’s interest in the hotel as her separate prop-

erty: by purchasing ‘it at the-sheriff’s sale to satisfy her judgment

for support payments due her. The full faith and credit clause

_ does not compel us £0 ‘overrule our decision by recognizing the

. Idaho judgment were we to concede its validity. The United States

Supreme Court has said that ‘ ‘The rule of primacy to the first.

final judgment is a necessary incident to the requirement of full

faith and credit.” Hanson v. Denckla, 357 U:S. 235, 256, 78

.S.Ct. 1228, 2 L.Ed» 2d 1283. The case of Hammell v. Britton,

~ 19 Cal.2d 72, 119 P.2d 333 quotes with approval from Martin:

‘Bros. Box Co. v. Fritz; 228 Iowa 482, 292 N.W. 143 as follows:

~ ““The, full faith and credit clause requires the courts

of one state te give to the judgment of a court of another

‘the same effect that is accorded such judgment in the latter

state. (citations omitted) Under such clause, since the

Iowa judgment has been adjudicated ‘to be: valid in Iowa,

the Indiana court should have enforced such judgment.

It refused to do so: We know of no decision which would

support the proposition that, if a judgment has been: ad-

-judicated to be valid and enforcible by a court in Iowa,

but enforcement of such judgment is thereafter refused by

a court in Indiana, the Iowa court must then follow the ‘

example of the Indiana court and also refuse to enforce

such judgment. We are unwilling to so construe the full

"faith and credit clause.”” 119 P. 2d 339

The Supreme Court of Nevada has said:

“Analysis demands the conclusion that. (plaintiff) does

not here ask. us to merely accord full faith and credit to

the Maryland decree. Instead, we are asked to give it:

greater credit and respect than the prior decreé of our own

State lawfully entered. Full faith and credit does not re-

4

} .

quire, nor does it contemplate, such actions from us.”

' Colby v. Colby, 78 Nev. 150, 369 P.2d 1019, 1023,

> Cert. denied 371 U.S. 888, 83 S.Ct. 186, 9 L.Ed. 2d 122.

Accord: Perry v. Perry, 51 Wash.2d 358, 318*P.2d 968;

. Astor v. Astor, 107 So. 2d 201 cert. den. 120 So.2d 176;

* .» Atkinson v. Kettler, 372 S.W.2d 704 aftd, 383 S.W.2d

| 557.

It is atgued by ‘sonata that the Arizona judgments are

entitled to full faith and credit as between Gladys and Arnold

only. We determined their. tights in the hotel but not the rights

‘of appellants. It would follow that the ‘Idaho court was not faced

-with’a final’ judgment in the action between Gladys and appel>

lants concerning ownership of the hotel and the Idaho judgment

is not void for that reason. Hence, the Idahe judgment was the

first decision on. the ownership issue as between Gladys and. ap- —

pellants and must be given full faith and credit by this court.

We do not agree.

If the Idaho trial court hadgiven full faith and credit to the

prior Arizona judgments or recognized ‘that the hotel was not

community property it could net have entertained appellants’ in-

tervention action. Ordinarily, rights to real property can be. liti-

gated in a divorce proceeding as an-incident to the dissolution of

the marriage and third persons claiming an interest in the prop-

erty may intervene: Potter v. Potter, 35 Wash. 2d 788, 215 P.2d

704; Brust v. Brust, 181 Or. 307; 181° P.2d 632; Wharff v. |

Wharff, 244 Iowa 496, 56 N.W.2d 1; Anno: 102 A.LR. 814.

However, the hotel ‘property was not involved in thé Idaho di- |

vorce proceeding because any interest which the parties previ-

ously held as’ community property, had become the separate

property of Gladys. Rules 14 and 24 of the Idaho Rules of Civil

Procedure deal with third party’ practice and intervention actions.

Rule 14 allows either party to bring in others which was not the

‘ase here? Rule 24(a) allows intervention by right whére, amon 2

other things, “the’ applicant is so situated as to be adversely af-

9

fected .by a distribution or other disposition of property which is

in the custody or subject to the control or disposition of the court

or an officer thereof.” This rule is‘also inapplicable. The appellants,

.- who intervened in the Idaho divorce suit would not have been

affected by.a distribution of property because the court could only

distribute community property. The hotel, in which appellants

claimed an interest, was Gladys’ separate property. Rule 24(b)

‘ allows permissive intervention where there is a common question

of law or fact involved in the main suit and the intervenor’s suit.

The ownership of the Arizona Hotel was not at issue in the

Idaho suit between, Arnold and Gladys and that. was the only

issue appellants interjected into the intervention suit. It follows.

- that there was no common question of law or fact. The Idaho

trial court had no power or authority toentertain the intervention ~

_ action and we need not give full faith and credit to its judgment.

Estin v. Estin, supra.

Appellants further contend that Gladys consented to the«juris-

diction of the Idaho court. It is irrelevant that Gladys and appel-

lants may have litigated the ownership of the hotel in the Idaho

court because “it is a universal rule of law that. parties cannot,

by consent, give a court jurisdiction of a subject matter of which

it would not: otherwise have jurisdiction, and a jucgment . ren-

dered in such a case is not validated by the consent.” Application

of Duke H. Martin, 76 Idaho 179, 279 P.2d 873; 30A Am.Jur.,

. Judgments, §27. It is true that Gladys filed an answer to the Idaho.

divorce complaint on July 10, 1959, alleging that the Arizona

Hotel was community property which it was at that time although

‘burdened with her lien for’ support payments. However, two

weeks later the execution and sale took place and the. hotel -was

no longer community property and- became her separate property

by reason of the sheriff's sale which. fact must-have been: brought ©

to the attention of the Idaho court. :

There is a further-reason why the Idaho judgment is not en-

titled to full faith and credit. Idaho had no. power or authority

and was completely without jurisdiction to establish or quiet or

: ‘ . 10 vo%

otherwise directly affect title to the Arizona Hotel property. Durfee

v. Duke, 375 US. 106, 84.S.Ct. 242, 11.L.Ed.2d 186; Fall v.-

Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65. Idaho has recognized’

this principle. Taylor v. Hulett, 15 Idaho 265, 97 P. 37. It is

clear that the Idaho trial court attempted to directly decide owner-,

ship and title of the Arizona Hotel. In its findings of fact it said:

“.

“This court finds that the Afizona Hotel, . . . is owned

by the Continental Hotels System, a co-partnership, . . .”

' In its judgment and decree i it said:

“It is further ORDERED, ADJUDGED AND DE-

CREED that the Continental Hotels System,-a co-partner- *

” ship, . . . is the owner of the following-described teal and

| personal properties, to wit: (The Arizona Hotel)”

Pursuant to the finding and judgment, Gladys was ordered to exe-

"cute within ten days the aforementioned quitclaim’ deeds and

assignments of lier interest in the hotel and if she failed to do so,

“the clerk of this (Idaho) court is hereby empowered to execute . .

' and déliver such conveyance as are (sic) nacenenty to carry into

force and effect said judgment.” —

Appellants argue that the Idaho court simply dinate the

rights and equities in the hotel property of the parties before it. .

They cite Kennedy v. Morrow, 77 Ariz. 152, 268 P.2d 326 and

Butterfield v. The Nogales Copper Co., 9 Ariz. 212, 80 P. 345

for the principle that an equity court’s decrees based upon. in ;

personam jurisdiction are valid though they concern or affect

- land out of the state. We have no quarrel with those decisions,

but they are inapplicable to this case f6r séveral reasons. - It is

true that the Idaho court had jurisdiction over the parties and the

subject matter -of the, divorce but it had no jurisdiction to order

Gladys to convey her separate property. Heslip v. — me

We have said: :

“‘* * -% The court must have (a) jurisdiction of the

subject matter of the case, (b) Gurisdiction of the persons

Pad

11

- involved in the litigation, and (c) jurisdiction to render

‘the particular judgment given. * * *’”

a e

“While this court has held that a divorce action is an

action in equity, (citation omittedy, yet the trial ‘court

may not assume a jurisdiction not given it by statute be-

cause divorce is primarily a statutory action and equity

is invoked in aid of the execution of the statute. Section

‘27-808; A.C.A. 1939, supra,-does not include.the wife’s

property. Such authority not expressly given by statute

cannot thus be: assumed.” Van Ness v. Superior Court,

69 Ariz. 362, 364, 365, 213 P.2d 899.

Divorce actions where the court undertakes to divide community

property both in and out of the forum must be carefully dis-

tinguished. We reemphasize the fact that at the sheiff’s sale Gladys.

acquired as her separate property whatever interest’ Arnold had

in the hotel to satisfy her judgment. Likewise, it is important to

distinguish cases where, for example, one party sues “another for

’ breach of a contract to convey land situated in another state. Here, |

the appellants’ action in Idaho was in the nature of a suit’to quiet”

title to the Arizona Hotel and the court undertook to directly :

‘adjudicate title thereto. Fhat conclusion becomes apparent whén

we ask the, following question: would: the Idaho court have

ordered Gladys to execute the quitclaim deed if it had not first

» decided that the hotel was owned by a partnership or that it was

community property? Obviously not. It determined in the divorce

decree who had title to the property and thereafter ordered the —

parties to execute all conveyances necessary to carry Out its judg-

ment and decree.

Additional evidence that the ais court.did not savle deter

mine the rights of the parties before it is the fact that the partner-

ship in which ownership of the hotel was found to be lodged was

_ not a party before the court. Furthermore, the Uniform Partner- |

ship Act i is in effect in Iddho so that a perenne can sue or be

”

-

right to ‘demand an inventory of thé husband’s separate —

i cay? e

sued in its own name. Idaho Code, §53-301 et seq, §5-323. The

‘Continental Hotels Systems partnership was not a party to the

Idaho Suit. Therefore the court was not merely .adjudicating the

tights: of parties before it wher it decided that the partnership

owned the Arizona Hotel. That part of the Idaho judgment is

- void. Durfee v. Duke, supra; Fall v. Eastin, supra; Taylor v.

‘ Hulett, supra. -

We must next consider the documentary evidence submitted

by appellants at the trial below to determine whether they made

outa prima facie case that the Arizona Hotel was owned by a

partnership which would require that Gladys’ motion for a di-

rected verdict be denied. Figueroa v. Majors, 85 Ariz. 345, 338

P.2d 803. The evidence shows that on July 30, 1943 Gladys-and

Arnold, as husband and wife, acquired a warranty deed to the

Arizona Hotel which was recorded August 13, 1943 creating a

presumption of community property. There was an agreement

dated September 21, 1943 which stated that Gladys and Arnold

owned one-half interest in the hotel and R. E. Spaulding and.

his wife owned the other one-half interest. The Spauldings con-

_veyed their alleged interest to Arnold and Gladys *by warranty

deed dated June 30, 1948 and they were again presumed to own

all of the Arizona Hotel as community property. There is a mort-

gage dated August 14, 1958 which recites that Gladys and Arnold

_ own the hotel as husband aid .wife. There is a lease dated April 1,

1949 between Arnold Porter as lessor and a’ tenant of the hotel

as lessee. There is a partnership agreement dated January 1, 1943

— seven months before. Gladys and Arnold acquired title to the

hotel — between Gladys and Arnold, Andrew Rickett and his

. wife, and appellants Pearline Porter and Pauline Leonard. The

agreement makes no reference to the Arizona Hotel. There is a ~

lease dated February -21, 1956 betwen Arnold, Gladys, Pearline

Porter and Pauline Leonard ‘as co-partners and lessors and a cor-

poration as lessee to a portion of the Arizona Hotel. This was the

only’ document admitted in evidence which suggests that the .

Arizona Hotel is owned by a partnership. The trial court con-

13,

cluded that’ this document, being unexplained, fell short of the

‘nearly conclusive” evidence requited,to overcome the presump-

~ tion created by the warranty deeds of Toly 30, 1943 and June 30,

1948 that the hotel was the community property of Gladys and |

rnold. Kennedy,v. Kennedy, supra. Considering the entire record

in the case, we will not disturb this finding. The other documents -

in evidence depended for their validity upon the trial court giving ©

full faith and credit to the Idaho judgment. Since we have de-

cided’ otherwise, the quit-claim deed, assignment and release of

judgment were of no effect. Garren v. Rollis, 85 Idaho 86, 375

P.2d 994; 49 C.JS., Judgments §449.

Appellant Kemble concedes that “The crux of this casg“is the

validity of the Idaho decree of divorce.” In view of this/ decision

_ denying full faith and credit to the Idaho judgmenty and our —

_affirmance of the trial court’s directed verdict, the other assign-

ments of error raised by appellants are moot. We have, however,

considered them-and find them to ‘be without merit.

The opinion of the court of appeals is vacated and the judg-

‘ment of the trial court is affirmed. |

ried ot BERNSTEIN, Vice Chief Justice

CONCURRING: .

FRED C. STRUCKMEYER, JR., Chief Jastice

LORNA E. LOCKWOOD, Justice

UDALL, Justice - — Dissenting:

We are confronted in this appeal with the constitutional ques-

tion of whether the courts of the State of Arizona have refused

to give full faith and credit to a sister state’s judgment in com- ©

pliance with Art. IV, § 1 of the Constitution of the United States

and Art. 2, §3 of the Constitution of Arizona. My analysis of

the facts and interpretation of the law requires a conclusion that -

-—_

the question must be answered in the affirmative.

I cannot agree with the result reached by the majority of this

_ Court for the following specific reasons: (1) There was never a

epg ee See ee

14 ‘tae

final judgment in this state, prior to the Idaho judgment, that

determined ownefship of the Arizona Hotel property on the

merits of the controversy; therefore, the Idaho trial ‘court did not

"have to give full, faith and credit to a prior Arizona judgment;

(2) Even assuming a valid Arizona judgment, the Idaho judg-—

ment was subsequent in time and therefore entjtled to full faith

and‘ credit; (3)° The appellee, Gladys Pre ive her rights

in the Arizona property by appearing in thé Idaho action, and

be subsequent acts of executing quit claim deeds, assignments

and releases of her interest in the Arizona Hotel property; (4)

“The first final determination on the merits of any interest of the

Porter sisters in the Arizona- Hotel property was by the Idaho

court and the sisters were proper parties, according ‘to the Idaho

court’s construction of its own judicial rules, to intervene in the

action iri Idaho. ‘

The Constitution of the United Seates requires each state to

give full faith and {credit to the judicial ‘proceedings of every

other state: Article IV, § 1 of the Constitution of the United States

provides as follows: | 7

-

“Full Faith and Credit shall be given in each State to

the public Acts, Records, and judicial proceedings of every

other State. And the Congress may by general Laws pre-

scribe the Manner in which such Acts, Records and Pro-

ceedings shall be proved, and the Effect thereof.”

In 28 US.C.A. § 1738, ‘Congress has prescribed the manner in

which these records may be proved and this statute nee in part as

follows: fn e% :

“The records and ssdicial peoceedings of any court ‘

any such State, Territory or Possession, or copies thereof,

shall be proved or admitted in other courts -within the

United States and its Territories and Possessions by the

‘attestation of the clerk and seal of the court annexed, if a

_. seal exists, together with a certificate of a judge of the

| court that the said attestation is in proper form.

mee eT hha Neti Ri at eee

15S

“Such Acts, records and judicial proceedings or copies |

', | thereof, so authenticated,’ shall have the same full faith »

and credit in- every court within the United States. and

its Territories and“Possessions as they have by law or

usage in the courts of such State, Territory or Possession |

from which they are taken.”

‘Thus, a judgment: of a court of general jurisdiction of a sister

state duly authenticated is prima facie evidence. of the jurisdic-

tion of the court to render it and of the rights which.it purports

_ to adjudicate. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137,°89~—

L.Ed. 82; De Sonora v. Morales, 23 Ariz. 248, 203 Pac. 328.

The record in this case is clear that-no court’in Arifona, prior i

to this appeal, has decided, on the merits, that the Arizona Hotel

_ is community property, In Porter v. Staniford, 86 Ariz. 402,347

P.2d 35, cert. denied, 371 U,S. 829, 83 S.Ct. 23, 9 L-Ed.2d 66, |

this Court ‘did not hold that title to the Arizona Hotel property

had been determined by the Superior Court. In quashing the

alternative writ of prohibition, we. simply ruled that the Superior

Court had acted within its jurisdiction in ordering the receiver

of the property to make support payments to Gladys Porter, be- .

cause a presumption that the property was community property

obtained: and‘,would continue to prevail until destroyed by ‘evi-

dence to the contrary. This, of course, is fundamental community

property law in this jurisdiction. The presumption is not con-

clusive, and if a party proves by clear, strong, satisfactory cogent

: and convincing evidence, at a trial on the issues, that property

_ was held under a different form of ownership, the presumption

is rebutted. King@ery v. Kingsbery, 93 Ariz. 217, 379 P.2d 893.

- The facts and circumstances in each case determine whether the

"presumption has been rebutted. In all cases, however, there must

_ bea judicial determination of whether property #8 community. A -

mere allegation by one party that property is held under a form

of ownership, an execution, and.a_sheriff’s sale age certainly not

sufficient to confirm a presumption. : "9:

?

; | 16 FA

As was stated in Porter v. Stanford, supra, by Justice Jeune

in his dissent:

a

“It is further stated in the majority decision that ‘* * *

The presumption that it (Arizona Hotel) is community

property therefore obtains and will gontinue to prevail in

. favor of Gladys E. Porter until it is destroyed by evidénce ~

to the contrary.’ I am definitely of the opinion that what*

ever presumption prevailed in favor of Gladys E. Porter

that the hotel property was community property com- 7

pletely disappeared ‘in the sunshine of actual facts,’ Seiler

v. Whiting, 52 Ariz. 542, 84 P.2d 452, 455; for at the

hearing of June 19; 1959, the respondent court admittéd

in evidence a lease executed by:Gladys E. Porter, leasing .

space in the Arizona Hotel, the preamble of which recited

| “that the lessors, William A. Porter, Gladys E. Porter, and

the petitioners herein were partners; and as we said in the

- Seiler case ‘** * * The presumption, when*the opposite

party -has produced prima facie evidence~has spent its

force and served its pufpose, and the party then, in whose

favor the presumption operated, must meet hi’ oppon-

_ ent’s prima facie evidence with evidence, and . not pre

sumptions. 7 -o,

{Further, evidence that this presumption completely dis-

appeared is indicated by Gladys Porter’s couaterclaim in

Idaho, which stated: “the parties hereto own as com--

munity property an interest in the Arizona Hotel . . .”,:

_ infra; the findings.of the Idaho Court that the property

was partnership as indicated by the finding of fact: “The .

’ court finds that the interest of [the Porter sisters} in and

to the Continental Hotels System, a co-parnership, * * *,

is a bona. fide partnership interest therein, * * *. The

Court further finds that at all times partnership tax: re-

turns have been filed with both the Federal and State gov-

-ernments and that the interests of the intervenors has at _

%

17

_all times been ‘so declared: by the records, books and files

of said co-partnership.”, infra; and, that ‘the presumption-

was not conclusive by language approved by this Court in

Kemble v. Porter, 88 Ariz. .417, 357 P.2d 155.} .

“The net result of the majority opinion in upholding . :

the actidn of the trial court in ordering the receiver to pay

to Gladys E. Porter. the sum of $1,000 per month for sup-

- port of herself and minor children from the Arizona Hotel

prior to an adjudication and a decree that. such property

“was community property of William A. Porter and Gladys

E. Porter, permits an individual creditor of 4 member of

a partnership to have partnership preperty: applied if ‘Li

quidation of her claim before an accounting is had of the

partnership and before the creditors of the partnership are.

satisfied.” 86 Ariz. at 411, 347 P.2d at 40-41.

***”

Prior. to the separate “ maintenance decree in favor of Gladys

Porter, the Porter sisters intervened in the suit and contended the”

of the separate mainténance decree conclusively shows that Glady3_ *

hotel property was owned by a pastnership. A perfunctory =

Porter had a lien only on the parties’ “community property” in

this state. The pertinent portion of the ‘Arizona Separate mainte-

nance > decree is as follows:

“ * * * The Court further finds that all of the com-

munity property of the plaintiff and defendant located in

the State of Arizona should be charged with the support

of the plaintiff, and for that purpose any community’ in-

‘erest in the Arizona Hotel, being * * * is to be used for —

‘the payment of plaintiff's and the minor children’s support

and maintenance, and should be set aside for that Purpose.

* #O%

“4, That the plaintiff have a lien ‘on all of the com-—

. munity property of the parties hereto for support under _

a pendente lite order, which has not yet been paid to her

** *, ea

ah ay he atlanta gli

i That any community interest of the: parties hereto in”

"+ the Arizona Hotel being * * * is hereby charged_with

payment of the support to the plaintiff and that the lien

hereiriabove set forth is to affix to any community interest

«in the Arizona Hotel.” [Emphasis added}

There-is‘no doubt under the laws of this state that if the Ari-

zona ma property was subsequently determined to be partner-

- ship property the above decree would be ineffective as to such. It

scarcely seems necessary to cite authority for the proposition that

partnership property, or the. interests of an individual partnér in .

‘partnership property,’ may not be sold under attachment or exe-

cution for the individual debt or other personal obligation of one

of the partners. ‘An unlimited sale of partnership property under ©

an execution against only one of the partners is not in compliance

with the statutory law of this state: é

. ARS. § 29-225. B(3)- specifically willie ¢ the levying of an .

iceiacheidin or execution upon the partner’s interest in partnership ?

property for a personal obligation. The only remedy is that pro-

vided by ARS. § 29-228, where a. charging order may be per-

- mitted on a judgment charging the interest of the debtor partner.

Prior to the enactment of the Uniform Partnership Act, this Court

in Olds Bros. Lumber Co. v. Marley, 72 Ariz: 392, 236 P.2d 464,

recognized the above tule. See also, Sherwood v. Jackson, 121

Cal. App. 354, 8 P.2d 943; State v. Elsbury, 63 Nev. 463, 175 |

-P.2d 430. |

Since A.R.S. § 29-225 prohibits the attachment or execution of

a partner’s right in specific partnership property, except on a

claim against the partnership, the levy of ‘the general execution —

_upon the Arizona Hotel propérty, the sale, issuance of a certifi-

cate, and the issuance of a deed were void until the issue of

whether the property’ was comunity Property or partnership

° property was determined.

- It is well established that ale the right, title and interest of

a judgment-debtor is sold at an execution sale, Fay v. Harris, 64 *

e

Po

Ta °

Ariz. 10, 164 P.2d 860, and if the sheriff attempts to sell. property

Friedman, 8 Ariz. 215, 71 Pac. 935.

. As was stated shai this Court in ny v. Lee, 57 Ariz. 41, 6,

‘110 P.2d554:. |

“Was the ownership or right to possession of the

premises in either cause No. 440“%3 or No. 46685? It is

clear that in the first, an action by Lee against the Millers

for money due, it was not involved and could not have

been. It is*true the court rendered judgment for Lee~and

at the same time ordered the judgment lien on the prem-

tses foreclosed and the property sold go satisfy the judg-

ment but this did not determine that the premises whose

more than a year were the property of the Millers’and not

hers. When he filed the suit Lee cdused the writ of at-

.tachment to-be issued and levied on a number of parcels

~ other than that of the judgment debtor, the sale is void and the .

purchaser acquires no title to the property sold. Steinfeld v. Cop- - -

~.. per State Mining Co., 37 Ariz. 151, 290 Pac. 155; Costello V.

title then stood in the name of Alice Luther and had for .

4

\ of real estate as the property of the Millers, among which

-was that in question heré, but in ordering the lien fore-

court. did not determine that the property was his. So,

naturally, the order foreclosing:the lies: and directing the

‘ closed and the property sold to satisfy the judgment the ~

' sale applied only to the interest of the Millers, whatever

that was, and. could not have deprived Alice Luther who

- was not even a party to the action of her interest, if she

“had any. This left open the question as to who was the

" gwner, in fact it. had not been raised, so when Lee be-

came the purchaser .of the premises, at the sheriff's sale

he acquired no more than the Millers then had, a matter

that was thereafter to be determined, provided it should

be questioned by the record title holder, or her grantee.”

Gladys Porter's position and the majority opinion are correct

only if the Arizona Hotel property had been adjudicated com-

~

a 2 -20.~=«\’

munity property of Arnold. and Gladys Porter, and not partner-

_ ship property belonging to the Continental Hotels System. At the’

time-of the sheriff's sale, this issue had not been’ determiaed. This |

was the very reason given by this Court for dismissing the appeal, |

from the denial-of a motion to set aside the execution sale, in

. Kemble v. Porter, 88 Ariz. 417, 357 P.2d 155. If it had been’

judicially determined that the Arizona ‘Hotel property was com-

munity property, then the majority. opinion might be correct in ”

stating the property belonged to Gladys Porter as her separate

property and Idaho should have given. full faith and credit .to an

Arizona judgment. This was not the case before the Idaho court.

The majority opinion would require that ‘full faith and credit be

given an Arizona sheriff's sale which is not the law. Only final.

judgments on the merits by a competent court, absent fraud and

with jurisdiction, are within the ambit of the full faith and credit

clause of the United States Constitution.

Before this matter came to trial in Arizona, a court of compe-

tent jurisdiction, the Idaho District Court, determined that the

Arizona Hotel property was the property of the Continental Hotels _

System partnership and ‘not of-the community ‘consisting of Ar-

nold and Gladys Porter: This determination is res judicata and

entitled to full. faith and. credit in Arizona. Day v. Wiswall’s

Estate, 93 Ariz. 400; 38] P.2d 217. The result is that Gladys

Porter purchased gothing at the sheriff's sale.

I do not agree that this Court “has held that the Arizona Hotel

was community property as between Gladys and Arnold’ by virtue

of a strong presumption which was never overcome and has rec-

. ognized that Gladys Porter could obtain Arnold’s interest in the

hotel as her separate property by purchasing it at the sheriff's.

sale to satisfy her judgment for support payments due her.” We

held in Porter v. Stanford, supra, that the lower court had author-

ity to order the euebend or receiver of community property to pay

_ separate maintenance “pendente lite”, and that the property in. °

issue was: presumed community until ‘dew otherwise. Pendente

lite translates into “{p]ending the suit; during the actual progress:

21

of a suit; during licigation.” Black's s Law Dictioneiy, Ath .

p. 1290. In this case it meant pending determination whether the

property was partnership or community property. Our.prior de-

cisions did not hold the property to be community. Heretofore, a

paenrenyeine has never meant the same as a judgment.

‘ It is obvious from A.R°S. § 25- 242(B) that the amount of a i.

final judgment for separate maintenance ‘may be adjudged a lien;

upon the separate property of the husband.” The: separate mainte-

nance decree referred only to any. community interest of Arnold -

Porter. This statute’ fixes the type property upon which .a judg-

ment lien in a separate maintenance action may attach, and we

should limit the type of property to separate under the doctrine

of inclusio unius est exclusio alterius. This statute recognized the

theory. .of community property as explained in La Tourette v. La -

Tourette, 15 Ariz. 200, 137 Pac. 426, that until there is a disso-

lution of the community by death, annulment or divorce, . the

wife’s interest in the property is identical and inseparable from -

the husband’s. Therefore, a decregitor separate maintenance cannot

dispose of community property of the parties since the marriage

relationship. is not .terminated. Jacquemart v. Jacquemart, 125

€al.App.2d 122, 269 P:2d 951; O'Connor v. O'Connor, 91 Cal.

App. 2d 147, 204 P.2d 916; Ducasse v. Modica, 224 La. 318, 69

So.2d 358; Radermacher v. Radermacher, $9 Idaho 716, 87 P.2d

461. The trial court had no power to dissolve the community and

make a division of the property in a separate maintenarice action

_ 9f cause community propezty to be. sold. This rule of law- should.

not be permitted to be circumvented By the issuance of a general

execution, a levy on the property and a sale to the appellee. What

the court could not directly do by its decree, Gladys Porter ‘could

not indirectly accomplish by a sale under a general execution.

_ Even if we assume that the trial court could permit a lien on”

any. community .property of the Porters, it does mot follow that

the property became community. The past due alimony became

. vested in Gladys and to this extent was entitled to recognition by ,

the courts. While this was: a final judgment, the vane cine exe-

: | ?

Es,”

sc ah Si A

- : ae

cution could not have determined the ownership of the’Hotel. ) |

The judgment was dependent on a contingency and was ‘not a

final determination. of the @ntention between all parties. The con-

tirigency was that the Hotel would subsequently be judicially o

clared community property. This fact never occurred.

The general law as to the coriclusiveness of a judgment being

of prime necessity to a valid execution is:

“* * * a judgment is not generally considered final

where further judicial: action is necessary in order fully’,

and finally to settle the rights of the parties, as where the

judgment settles only some of several issues .of law or

fact, or does not dispose of the case as to all the parties;

* * * | A judgment is not final, which is to become a

fective only.on the happening of a future event or con-'

tingency or which is made subject to revisionsat a future

specified date.” 49 C.J.S. Judgments § 11, p. 38.

Not only must a judgment be final, as between the euities to per-

‘mit an execution, it must, also, dispose of claims and rights of all -

the parties. No judgment in this state disposed of the contention

__by Kemble and the Porter sisters that the property was_partner-—-——-

ship. Since the separate maintenance decree was final only as to

past due alimony between Gladys and Arnold Porter, the Idaho”

Court was not obligated’ to give full faith and ‘credit to any. al-

leged determination of the Arizona Hotel property as affecting the ©

Porter sisters. Gladys Porter f never held the hotel as her separate

property as between her and her husband if the property was later.

determined to be partnership, and certainly did not hold the

property—as separate as between her and the Porter ‘sisters or |

Kemble, by the execution sale. See Miller v. Gregory, 82 Cal.App.

634, 256 Pac. 431; Takahaski v. Kunishima, 34 Cal. ae: 367,

93 P.2d 645. ae

A second: reason for reversal of this case is che Tdaho decree.

Even if we accept Gladys Porter’s view that the Idaho court, in

decreeing the divorce, failed to give appropriate effect to the ad-

3 | 23 |

=a itl ene , :

judication made in the former Arizona action, the courts of “Ari-

zona are compelled , accord full faith and credit to the Idaho

judgment. The asseff€d denial of the Arizona separate mainte-

_ mance decree by the Idaho court does not permit or justify retalia-

tion by the courts in Arizona. Gladys Porter’s remedy to correct

any alleged error was by appeal from the Idaho decree through .

‘the. Idaho. courts, and, if necessary to the Supreme Court of the

United Stat :

_ The majority opinion adopts the questionable codstinutionsl

doctrine that where one ‘state renders a judgment and the parties

rélitigate the issue in a second state, the original jurisdiction does

~ not have to: give full faith and credit.to the second conflicting

judgment. Support is found for this position in the’ case of Colby

v. Colby, 78 Nev. 150, 369°P.2d 1619, cert. denied, 371 U.S.

888, 83 S.Ct. 186, 9L.Ed.2d 122. This decision has been criticized

by legal commentators. See, 63 Colum. L. Rev. 560; 31*Geo.

Wash. L. Rev. 648; 16 Vand. L. Rev. 193; 15 Stan. L. Rev. 331.

A reading of United States’ “Supreme Court cases does not per-

mit such a tenuous and chimerical distinction. In Sutton v. Leib,

"342 US. 402, 72 S.Ct. 398, 96-L-Ed. 448, a federal court apply-

"ing Iflinois law in’a diversity case was required to give full faith

and credit to a New York. court’s finding that impeached the

jurisdiction of a Nevada ex parte divorce since: the‘New York

judgment was res judicata. The Court stated the New York “decree

is éntitled to full faith throughout the Nation, in Nevada as well

as in Illinois.” In Morris v. Jones, 329 U.S. 545, 67 » 67 S.Ct. 451,

91 L.Ed. 488, the state of Illinois was required to give full faith -

“and credit to a Missouri judgment’ which was subsequent to an

‘Illinois court order staying all suits against an unincorporated in-

surance association. The case of Treinies vy. Sunshine Mining Co.,

308 U.S. 66, 60 S.Ct. 44,-84 L.Ed. 85, held that’ where parties

appear and litigate jurisdiction in one state aritthen relitigate’ the

same issue in a second state to final judgment, the res judicata

doctrine prohibits an assertion in a third action that the first -

judgment was entitled to full faith anderedit in the second juris-

éb . a ie ‘

lb inetd eS A 0 RE ee i a a gba cs att ASN a a ne Geo AS ata

24 el ;

" diction. See also, Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, ¢ °

-. 85, L.Ed. 278; Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142,

Furthermore, subsection (e) of § 42 states::

72 L.Ed. 365, It is my judgment that the above cited cases con-

clusively answer this question and should be followed in decid-

ing this matter. r mee

Additional support for this position is found in the Restatement

of Ipdements, 342, which States: np _

¢ “Where ip two. successive actions between the same

parties inconsistent judgments are rendered, the judgmeiit

in the-sécond action is ON in a third actions be-

tween the parties.”

“The rule stated in this Section is “gelicalile’s not only .

_ where the actions are brought in the same State, but also

- where they.are brought in different States.”

Specifically on point is subsection (d) of the above section which

is as follows:

“The ale ad in this Section is snide where a

question of title to property is raised in the threg Actions.

If in the first action it is held that one of the. parties has

the title to the property, and in the second action the

prior, judgment is not alleged or ‘if i it is alleged the court

erroneously holds that it is not cohchusive, and it is held

that the other party has’ the title to. the property, then in

a third action the judgment i in ‘the second action and not

the judgment i in the first action is conclusive between thee

parties.” |

This Court ‘on numerous occasions has stated that in the absence

of prior decisions to the contrary, this: state will follow the Re-

statement -whenever applicable. See, MacNeil v. Perkins, 84

Arize74, 324 P.2d 211; Bristor v. Cheatham, 75 Ariz. 227, 255

P.2d 173; Ingalls v. Neidlinger, 70 Ariz. 40, 216 P.2d-387; Wad-

dell v. White, 56 Ariz. 525, 109 P.2d-843; Cole v. Arizona Edison

Co., Inc., 53 Ariz.,141, 86 P.2d 946; Smith v. Normart, 51, Ariz.

ot

25 . oe

134, 75 P.2d 38. It is not clear why %e should deviate from this.

established rule in the instant ¢ase. The law enunciated in the ¥

Restatement of Judgments, § 42, is sem to this matter and

should be followed.

Gladys Porter’ did appeal 3 a pdttion of the Idaho dime ie

_ and her single assignment of error to. . the. Supteme Court of

Idaho was as follows: . -

“The Court erred i Ar enjoining iii [Gladys: Porter}’

- from maintaining or instituting any action‘or from te-

: ceiving the benefits of any judgment previously obtained

against or ia property known as the Arizona

Hotel.” ies

The Supreme Court of Idaho ‘sald the. Idaho divorce. iii ee.

except they modified the decree as to one section. In Porter v. :

Porter, 84 Idaho 400, 373 P.2d 327, that Court ‘stated:

“Section 17 of the judgment enjoins. the appellant

‘from maintaining, prosecuting or instituting any action

against the plaintiff or intervenors affecting those prop-

erties known as Arizona Hotél from date hereof,’ This

-enjoinder will prevent appellant from exercising any rights

"which she may have outside the present action and to-all

rights which may enure to her in the future by virtue of

this decree or otherwise.

“Appellant should not be precluded from enforcing her

tights under this ‘decree in this state or any. other state

providing she has fulfilled her obligations as provided

“therein. To this extent the trial court is directed to amend

% its decree.” [Emphasis addetl].

| The Supreme Court of Idaho discussed the effect of a valid for-

eign divorce on a prior determination of the right to separate

‘maintenance by a sister state. The court cited, the’ case of. Lynn v.

Lynn, 302 N.Y. 193, 97 N.E.2d 748, cert. denied, 342 US. 849,

72 S.Ct. 72,96 L.Ed. 640, which held that a Nevada divorce .

terminated support money obligation imposed -by the prior New

. . .

Soe eae hang ae eae gy a el ac ota title

end

a ee seid Shh 1 Ratan ARE lis ccieh oa NE he ee ca Smet

rea ever ere

pene

York separate maintenance: judgment where ‘both parties ap-

peared in the Nevada action. Other states have held the right to

Support or maintenance does not survive a -valid foreign divorce .

where both parties appear in the’ divorce action. ‘See e.g., Barber

_ v. Barber, 51 Cal.2d 244, 331 P.2d 628; Lowry v. Lowry, 174

Kan. 526, 256 P.2d 869; Chittick v: Chittick, 332 Mass. 554,

126 N.E.2d 495; Loeb v. Loeb, 118 Vt. 472, 114 A.2d'518. The

Idaho Supreme Court then went: ‘one step further than termination

. Of. the Arizona separate maintenance decree, and discussed the

authority of the trial court: in ptohibiting Gladys Porter from

enforcing the pre-existing judgment against that share ‘of the

community property awagded Arnold Portes, As to this matter,

the Idaho Supreme Court concluded that “Gladys Porter sub-

mitted to the jurisdiction of the Idaho trial court for determina:

tion of her rights, and by so doing, she had submitted her rights

under the separate maintenance decree and any other claims or

demands to the Idaho court. Accord, Gilbert v. Gilbert, 83 Ohio

State 265, 94 N.E.°421. This determination cannot be collater-

ally attacked in this state as it is res judicata. |

We are not dealing with a foreign ex parte divorce. decree

affecting prior support claims. The case presented is where 4 di-

vorce was granted by a sister state and both parties to the mgrriage —

were before the court. The Idaho « court was capable, and did, affect

the in personam rights of the parties. We are compelled to give

full faith and credit to any disposition of the Arizona suppoft

claims made by the Idaho court, and eannot adjudicate:the support .

- claims since the Idaho court settled the relationship once and for

all. Bates v. Bodie, 245 U.S. 520, 38 S.Ct. 182, 62 L.Ed. 444, We

must look td thie Idaho decree to determine the status of the sup-

port rights under the prior, Arizona decre¢, which indicates the —

. Support —e were- merged in the divorce decree by the, Idaho

court.

The United States auslidi Court, in Shereer v. Sherrer, 3 34...

US. 343, 351, 68 S.Ct. 1087, 1091, stated: “.’. . the require-

ments of full faith and credit bar a defendant from collaterally

ey Oe

: 27 Se eee

- . -

attacking a divorce decree on jurisdictional grounds inthe courts -

of a sister State where there has been-participation by the defend-

_ ant in the divorce proceedings, where the defendant has been |

accorded full opportunity to contest the jurisdictional issue, and

‘ where the decree.is not susceptible to such collateral attack, in

the courts of the State which rendered the decre¢.” See also, Coe

-_v. Coe, 334 USS. 378, 68 S.Ct. 1094, 92 L.Ed. 1451. Certainly,

general Appearance is participation for the purpose ‘of this rule.

Haden v. Haden, 120 Cals App.2d 722; 262 P.2d 73.

~ Gladys Porter ‘appeared personally in Idaho and contested that

coust’s jurisdiction over the: Arizona Hotel property. The trial

court ruled adverse. to her‘contention and determined ownership

of the property. This Court, by the command of the United States

Supreme Court in the above cited cases, cannot now determine —

that the Idaho decree was rendered without jurisdiction. ‘

_ A thifd reason why Gladys Porter should not now be permitted

to claim an interest in the Arizona Hotel property is her actions

in dealing with the property before the ‘Idaho court. Gladys Porter

. in her counteiclaim for divorce in Idaho alleged: ae at

“* *.* that the parties hereto own as community prop-

__ erty an interest in°the Arizona Hotel located at the corner

. of Third Avenue and ee in Phoenix, Ati-

zona * * * ;” — P

Thus, she admitted in her pleadings that the parties.own-as-com-

munity property an interest in the Arizona Hotel. The Idaho trial —

" court pursuant to the statutes of that state had jurisdiction to di-

vide the community property of the marriage. Ida. Code § 32- 712."

Appellee placed the issue squarely before the Idaho court: and

Should not.be ‘heard at ns late date to contend that Idaho’ had

"no jurisdiction. a.

As a result of the sie divorce decree Gladys. Porter executed

the following documents: : : ee

eo “RELEASE OF JUDGMENT -

“COMES NOW the above-named Plaintiff and- De-

7

- 28

fendant in Intervention, GLADYS E. PORTER, and here-

‘by releases that certain: Judgment and Decree entered by

the above-entitled court {Arizona}, on the 14th day of

May, 1959.

“This’ release is made in compliance oi ‘that -certain -

‘Judgment and Decree made and entered in that certain

action designated as Civil Action No. 18556-A by .the

District Court of the Eighth Judicial District of the State

of Idaho in and for the County of Kootenai on the 28th -

* day of December, 1960.”

5 eee “ASSIGNMENT

“KNOW ALL MEN BY THESE PRESENTS: That

_ the undersigned, Gladys E. Porter, does hereby sell, assign,

set oyer, transfer and convey-unto W. A. Porter, two-.

thirds-of all of her right, title and interest in and to that

certain partnership known as the Continental. Hotels

System; and the said Gladys E. Porter does hereby also_

sell, assign, set over, transfer_and convey unto Pearline

Porter and Pauline Porter Leonard, one-sixth each of all

of her right, title and interest in and to that certain part-

nership known as the Continental Hotels System;. this

_ assignment being made and given pursuant to that cer;

tain Judgment and- Decree made and entered by the Dis--

trict Court of the Eighth Judicial District of the State of

Idaho in and for’ the County of Kootenai ‘on the 28th

day of December, 1960.

“DATED: February 27, 1961.”

“QUITCLAIM DEED

“For Value Received GLADYS E. PORTER ©

does hereby convey, release, remise and forever quitclaim

unto PEARLINE PORTER: and PAULINE PORTER

_ LEONARD, an undivided one-sixth interest each in and

to all of her right, title and interest in and to the follow-

ing described premises, to-wit: °

Go:

“429

“Lots 1, 3 and 5, Block 74, original townsite of Phoenix

aceotding to the maps and records of the County Re-

corder of Maricopa County, State of Arizona, together

with all good will, trade-naine, fixtures, furniture, fur- |

nishings and equipment and all supplies afid every in-

cident and appurtenant, including rental agreements,

affecting the same. (Also known as the Arizona Hotel)

“AND That certain. co-partnership nnomrn as the Con-

.tinental Hotels System.”

Gladys Porter also executed a quitclaim deed ‘dvi to the

above conveying an undivided two-thirds i interest to Arnold Porter.

Even assuming the majority opinion correct, these instruments

conveyed all of Gladys Porter’s interest in the Arizona Hotel and

released the prior -judgment. She. has absolutely and unequivocally

waived any right, title and interest in the property in dispute. The

law does not permit a party to maintain such conflicting positions

simultaneously. +

‘

,

Some reliance is placed upon the fact that the Arizona Hotel,

being real property, was located in Arizona. This did not deprive.

the Idaho court of jurisdiction. to adjudicate the interests of the

various parties before the court’arid, acting in personam, to make

an effective order disposing of the property. We have discussed

this matter perry: and our language in Kennedy v. Morrow,

77 Ariz. 152, 268 P\2d 326, is appropriate. Ir was argued in the

_ Kennedy case that a deed- executed pursua. * to the order of a

California court could not operate as an effective conveyance of .

real property in Arizona. In rejecting this contention, this Court:

said: |

~ “The- ptoposition contended for by plaintiff is not the

law. When “equity has jurisdiction of the” parties it may

“adjudicate their interests in real propérty lying outside

the territorial jurisdiction, and acting in personam, it will ©

make such orders as the disposition of the case warrants.

It-is immaterial that the decree of the court could not of

30

_ its own force transfer an interest in the realty, for equity

May use its contempt process on the person, and compel

the parties to execute deeds, releases, quitclaims, etc.,

which are effective of their own force.” 77 Ariz. at hogs

(268 P.2d at 333% he

This: same principle was enunciated in Buttérfield v. Niciien

Copper Co., 9 ‘Ariz. 212, 80 Pac. 345, and reiterated in Santa

_ Cruz Ranch v. Superior Court; 76 Ariz. 19, 258 P.2d 413. The

same rule has been applied in the, State of Idaho. Idaho Gold ©

Mining Co. v. Winchell, 6 Idaho 729, 59 Pac. 533. ,

The Idaho | cqurt did not try title to Arizona real property but

merely computed and divided community debts‘and assets pur-

suant to personal jurisdiction over the parties. Gladys Porter vol-

untarily submitted to the jurisdiction of the Idaho court and having

submitted her interest in the community estate to that court for

determination, should now be bound by its decision. The fact that

she deeded away title to the Arizona Hotel property can be of

no avail. In addition, the Idaho court found:

“that: the plaintiff [Arnold Porter} is able to pay and

that the defendant [Gladys Porter] is entitled to receive

the sum of $1200.00 per month as alimony.” .

Having voluntarily submitted to the jurisdiction of the Idaho

court, Gladys Porter cannot complain if the findings of. fact arid

divorce decree are now binding upon her.

_ The United States Supreme Court has discussed the effect of

an in personam judgment concerning real property in a case con-

. cerning land lying between Nebraska and Missouri. The Nebraska

- court’ litigated the matter and the losing party went to Missouri

claiming the land. was located in the State of Missouri. The

United States Supreme Court in Durfee v. Duke, 375 U.S. 106,

84 S.Ct. 242,11 L.Ed.2d 186, stated: |

' “With respect to questions of £ jutitdiction over the per-

. son, this principle was unambiguously established in Bald-

win v. Iowa State Traveling Men’s Assn., 283 U.S. 522.

3h

There it.was held that a federal court in Iowa must give

binding effect to the judgment of a federal court in Miss-

ouri despite the claim that the original court did not

have jurisdiction over the defendant’s person, once it was.

shown to the court in Iowa that that question had been -

~ fully litigated.in the Missouri forum. ‘Public policy,” said

the Court, ‘dictates that there be an end of litigation; that

those who have ‘contested an issue shall be bound by the

result of the contest, and that matters once tried shall be

considered forever settled as between' the parties. We see

- no reason why this doctrine should not apply in every

~ case where one voluntarily appears, presents his case and

_ is-fully heard, and why he should not, in the absence of

fraud, be thereafter concluded by the judgment of the ©

tribunal to which he has submitted his cause.’ 283 US.,

at 525-526.

“Following the Baldwin case, this Court” soon sii

clear in a series of decisions that the ‘general rule is .no.

different when the claim is made that the original forum

did not have jurisdiction over the subject matter. Davis v.

' Davis, 305 US. 32; Stoll v. Gottlieb, 305 US. 165;

Treinies v. Sunshine Mining Co., 308 U.S.-66; Sherrer v.

Sherrer, 334 US. 343. In each of these cases the claim

was made that a court, when asked to enforce the judg-

ment of another forum, was free to re-try the question of

that forum’s jurisdiction over the subject matter. In each

case this Court held that since. the question of subject-

matter jurisdiction had been fully litigated in the original

forum, the issue could not be retried in the subséquent ~

action between the parties,” [Footnotes omitted]

The ‘Court concluded by. saying this rule of jurisdictional finality ‘!

should apply: to a case involving real property as between the ~

parties to the litigation.

The majority Opinion states, without arty sinlianit. that “Di-

vorce actions where the court undertakes to divide community

Fy

‘

ad

32

property. both in and out of ma forum must ie carefully distin- .

guished.” There is no reason or logic for such a conclusion. Every

case that I have tead « on ie point is just the.opposite of the above

statement.

The cases of Farley vy, aia 227 Col. App. 2d l, 38 Cal. Rptr.

357, cert. denied 379 US. 945, 85 S.Ct. 438, 13 L.Ed.2d 543,

and Rozan v. Rozan, 129 N.W.2d 694 (N.D.), are illustrative

of the usual rule Both cases held that where a divorce court, |

having’ in personam jurisdiction over. both parties, ordered one '

party to convey real property located in another state, the courts

of the state where the real estate is located must give the entire

_ decree full faith afd. credit as the facts thus determined are res

judicata in the subsequent action. |

Also, there can be no question at this date that’ if a divorce

court has in personam jurisdiction over both parties, and orders

the execution of a deed by one party, and if that party executed

the deed, even under judicial duress or threat of contempt, the deed

will convey title even though the land is located in another state.

. See e.g., Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433;

Rozan v. Rozan, supra; Fall v. Fall, 75-Neb. 120, 113 N.W. 175,

aff'd Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65. The Idaho °

court as an incident to the divorce action had jurisdiction to de-

termine the rights and liabilities of the community. Gladys Porter,

in her pleading, admitted the property was community and thus

did not consent to jorienction or attempt. to confer jurisdiction

on the Idaho court. ,

There is yet another reason why the majority solution should

not stand as the law in this area. The result deprives the Porter

sisters and Kemble of property without due process of law. This

Court, by its decision today, has. taken it upon itself to overrule

the Idaho court’s construction of its own court rules. I question our --

jurisdiction to make such an implied reversal of that court.

The majority opinion admits that a court may determine the

rights of a third party claiming an interest in real. property that.

33. . : >

©. is involved in a divorce action. Nevertheless, the solution adopted

by this Court, after interpreting the Idaho Rules of Civil Proced-

ure, Rules 14 and 24(A), states there was no common question +

of law or fact permitting intervention. The ownership of the hotel

property was a common disputed fact between Gladys Porter,

Arnold Porter, the Porter sisters and Kemble.

The Porter sisters were permitted’to intervene in Arizona;

Kemble was permitted to intervene in Arizona; both contended .

the property belonged to the partnership. No determination oc-

curred in the courts of this state as to the character of the’ prop--

* erty prior to the Idaho court’s determination that the Arizona

Hotel was partnership property. The Porter sisters’ intervened in

the Idaho divorce action claiming the property ;,was partnership

"_ property; Gladys Porter in her pleadings. stated the property was

community; this was a common question of fact, i.e., the character

_ of the property. This Court riow holds the Idaho trial court erred

in determining the ownership of the property and permitting ‘the’

intervention. If there was error in the Idaho divorce action; it was

~——‘a mattér for the Idaho appellate court, not this Court. |

Assuming, arguendo, that the Arizona sheriff's sale decided the = *_

ownership of the hotel property, which it could not have done,

there is no way that it could have affected the rights of the’Porter

_ sisters or Kemble. They did not have their day in court in Arizona

prior to the Idaho proceedings.

* The property labeled Gladys Porter’s separate propeity by the bg

» ‘majority was only between Gladys and Arnold Porter and had |

never been so adjudicated as to the Porter Sisters. There was still

pending a dispute in Arizona between the patties.

The Idaho trial court had jurisdiction to decide this matter.

The subject matter, the divorce proceeding, was before the court;

all of the parties claiming ownership to the property, except Kem-

ble, were before the court; and there was no fraud involved.

‘The first determination of the ownership of the: property be-

tween Gladys Porter and the Porter sisters was in Idaho. The'trial

a"

34

court rendered a decree finding the property in Arizona belonged

~ to the Continental Hotels System, a co-partnership. The decision

was appealed and affirmed except as before mentioned, and the.”

judgment. became final. This Idaho judgment is entitled to full

faith and credit pursuant to the United States Constitution and.

statutes enacted thereto.

It is no answer to say the partnership was not a party to the

Idaho divorce action or the Continental Hotels System did not

ae Idaho has adopted the’ Uniform Partnership Act which

® does not make a legal ‘partnership an independent juristic entity,

and whatever recognition is given therein to the entity theory, is

solely for procedural or conveyancing purposes. McKinney v.

Truck Ins. Exchange, 324 S.W.2d 773 (Mo. App.); Church

Budget Envelope Co. v. Cornell, 2 Ohio Opin. 2d 158, 136

N.E.2d 101; Stilgenbaur v.. United States, 115 F.2d 283 (9th

_Cir.); Thomas v. Industrial Comm., 243 Wis. 231, 10 N.W.2d.

206. Therefore, there was no requirement that the partnership ~

be a party to the suit. Ida. Code § 5-323; Ida. Rules Civ. Proc.

Rule-4(d) (3). Each individual partner of the Continental Hotels _

System, a co-partnership, was before the court and the Idaho

court could adjudicate thé rights of the partners. "©

There is no question the Idaho trial court found the property

in. issue to be Partnership as ‘shown by the following portion of

« . > fts decree:

“The court finds that the interest of Pauline Porter

Leonard and’ Pearline Porter in and to the Continental .

Hotels System, a co-partnership, formerly. the Rickett Ho- -

tel System, is a bona fide ‘partnership interest therein,

having been purchased and acquired by them by the con-

tribution of capital assets in the early formation of said.

‘hotel enterprise. The Court further finds that at all times °

. partnership tax returns have been filed with both the

_ Federal and State governments and that the interest of

- the interveners has at all times been so declared by -the

records, books and files of said co-partnership.” |

&

35

This finding is detétminative of thé issues in’ this appeal and

must be given due faith and credit in this State.

~ For the numerous reasons set’forth above, I cannot concur in

‘the decision of this Court in the matter. Any of the single reasons :

enumerated would be sufficient to revers¢ this matter and require

the lower court to give full faith and ctedit to the Idaho decree.

The majority of this Court pounce upon a result that is not sup-

ported by. law nor by facts in this-matter. This case. transcends?

equitable considerations or retaliatory justice, and-must be de-

cided pursuant to the Constitution of the United States. The under-

’ lying theory: of the ful] ‘faith and credit clause is to terminate a_

matter once it has received full consideration on the merits. This

case received full consideration on the merits in a sister state.

Hence, the judgment of the trial court should be reversed with an .

' order to dismiss ee s action. > :

: JESSE . UDALL, Justice

McFARLAN D, Justice +— Dissenting:

I cannot agree with the result reached by the opinion of the.

majority. I agree with the third grounds and specific reasons as

set forth in the dissent of Justice Udall.

As stated by Justice Udall, Gladys Porter submitted herself to

_ the jutisdiction of the Idaho court and alleged that the parties

“own as community property an interest “in the Arizona Hotel,”

thereby placing the issue before the Idaho court. |

’ The majority opinion states that Gladys, Porter pane in her

answer that the’ Arizéna Hotel was community property, bur-

dened with-a lien, but that two weeks later it was sold under exe-

cution sale and became separate property by reason of the sheriff's

sale “which fact must havg been brought to the attention of the

Idaho court” but does not state how it must have been brought’

to its attention. The records in the instant case include pleadings

but not the transcript of testimony; however, the bringing of the

matter of the sale to the attention of the Idaho’ court would not

change the situation.

z = 36

In the instant case Gladys Porter, in her supplémental answer

filed after the Idaho judgment, alleged the Idaho court was with-

" out jurisdiction to determine ownership to the Arizona property:

because the property was in custodia legis of the Superior Court

of Maricopa County. She also sought a charging order against any

interest of Arnold Porter in the Continental Hotels System in

_ the same pleading. She further sought to have the Idaho-court

give full faith and credit to the separate maintenance decree,

alleging there was due and owing to.her under ‘said judgment the

sum of $23,693.21 and that this amount will increase by $1400

on the first day of May, 1961 and the first day of each month

‘thereafter until said decree is modified or set aside. She. asks that

the judgment and noe of the Eighth Judicial District Court of

_ the State of Idaho, insofar as it relates to the divorce of the parties

and to the support and alimony/of a minor child,.Tom Clark

Porter, and to plaintiff's attorneys’ fees. and costs, be established

as a foreign judgment and that a charging order be issued out of

.the Superior Court of Maricopa County against the interest of

Arnold Porter, also. known as W. A. Porter, in the said co-

partnership known as the Continental ‘Hotels System. She further ..

asks that the said charging order provide that additional -pay- —

ments which. became due under the judgment and, decree of the

Idaho court become a lien against the interest of said Arnold

‘Porter, also known as W. A. Porter, in said Continental Hotels

System.. ;

In any event, by her conduct in Idaho, having sonnei the

‘benefits of the judgment and decree of the Idaho court, she waived

- any interest she possessed in the .Arizona Hotel property. By

signing the quitclaim deeds she is now estopped from claiming

_ any interest in’ the property. However, the conveyance of her in-

terest in these properties could only convey such interest as she

had on the date she signed the quitclaim deeds—on. February 27,

. 1961.-This was some pine months after she obtained a deed to

the property under the sheriff's sale.

a

The order of the court under which the property was. sold was

_for séparate maintenance and attorheys’ fees. The record does

not show whether the attorneys’ fees were paid by cash or by a

conveyance of an interest in the propérty by*Gladys Porter. If

by the latter method, her conveyance under the decree of the

_- Idaho court would be subject to whatever. incumbrance or convey-

ance she had previously made of the property to het attorneys. _

It is my Opinion ‘that the case should be reversed for further

proceedings, includigg the determination of the interest, if any,

which Gladys Porter conveyed by her quitclaim deeds.

ERNEST W. McFARLAND, Justice

aid

eo 8 > <<

2. OPINION OF. THE ARIZONA COURT OF APPEALS . |

1 Ariz. App. 363, 403 P.2d 298 (June 21,1965) ©

—i—__<--@-> ——

a

‘Peatline PORTER and Pauline P. Lewined, Appellants,

George C. Kemble, Appellant,

Vv

Gladys E. PORTER, Appellee

1 CA-CIV 27. |

Court of Appeals of Arizona. /

June 21, 1965. . aaa

"Rehearing Denied Sept. 2, 1965. 7

Beer & Polley, by Wesley E. Polley, Phoenix, for appellants

Pearline Porter and, Pauline P. Leonard. ; - ©

Kramer, Roche, Burch & Streich, by Charles L. Hardy, Phoe-

nix, for appellant George’ C. Kemble. ,

W. Francis Wilson and Richard A. ‘Wilson, Phoenix, for

appellee Gladys E. Porter. ,

_ CAMERON, Judge.

‘. This is an appeal by Pearline Porter and Pauline P. sabe:

appellants herein, intervenors below, and George Kemble, appel-

lant herein, intervenor below; from a decision of the lower court

in favor of Gladys E. Porter. Pearline ‘Porter and Pauline P.

Leonard are the twin sisters of Arnold Porter and will be referred

to as the Porter sisters. The intervenor, George C. Kemble, will

be referred to as Kemble. The facts so far as they are necessary

for a determination of this appeal are as follows:

. Gladys Porter and Arnold Porter were married in 1940, in

Detroit, Michigan, and there are four children, the issue of said

marriage. In 1943, Gladys Porter and Arnold Portér and the

Porter sisters entered into a partnership agreement concerning

the operation of the hotels owned by the parties. In August of

that year, a warranty deed conveying property :in Phoenix, Ari-

-. zona, described as the Arizona Hotel, was recorded in Maricopa,

c iS ‘

”

| 39 ee

% ee ae ~* |

‘County. The deed conveyed title to Arnotd and Gladys Porter,

husband and wife. The deed did. not mention any interest of the

gr sisters.

| At this time and nea the marital home. of Arnold oy

Gladys Porter was in Idaho. In December of 1958, Gladys Por-

- ter left Idaho to visit in California, and a few weeks later came. -

to Phoenix. In February of 1959,Gladys Porter filed a complaint

for separate maintenance in Maricopa County alleging that Ar-

nold Porter was a resident of Idaho and that she was now a resi-

dent of Arizona. The complaint also alleged that the property

described as the Arizona Hotel was community property. An at-

tachment was issued which was levied upon the Arizona Hotel.

- The Porter sisgers then intervened in‘.the said action, claiming that ®

the Arizona Hotel property was not community property, but

_ that it was partnership property, ang that they, the Porter sisters,

owned a one-sixth interest each, or a total of one-third, in and to

the property described as the Arizona Hotel. The wife petitioned

for the appointment of receiver, and also filed a counterclaim: ”

against the Porter sisters as. intervenors, denying their allegation,

and claiming again that the | property. was community. A receiver

was appointed to run the hotel and later, on 14 May,. 1959, a

decree of separate maintenance in favor of Gladys Porter, the

wife, against Arnold Porter was granted: Arnold Porter, the hus-

band, had not been personally served in Asiaons and did not

appear in the action. |

3

Thereafter, the i intervenor, Kemble; filed a cuted in Cochise

County for and on behalf of the Porter children, and against the

husband and father, Arnold Porter. Judgment was entered against

Atnold Porter in the amount of $135,575.23, on the same day

the complaint was filed, 25 May, 1959. Also on the: same day, .

an order was issued out of the Cochise County cofrt charging the .

judgment against the Arizona property as a” partnership. Gladys

. Porter was not a party to the action in Cochise County.

Also of 25 May, 1959, Arnold Porter filed a complaint for

_ divorce against the wife, Gladys Porter, in the District Court of

¥ : 2

ww

40

the State of Idaho, 18th-Judicial District, County Kootenai. Back

in Arizona, the Maricopa County Superior Court otdered that“the

receiver of the Arizona Hotel property pay to the wife, Gladys

_ Porter, the amount of $1, 000 per month for support of herself

and the minor children until the issue of the ownership could be

determined. The Porter sisters’ and Kemble- immediately peti-

‘tioned the Supreme Court of Arizona for writs of prohibition en-

_ joining the Superior Court from enforcing this order. The alterna-

tive writs of prohibition were quashed in the-cas¢. of Kemble’’v.

Stanford, 86 Ariz. 392, 347 P.2d 28 (1959), and Porter v.

Stanford, 86 Ariz. 402, 347 P.2d 35 (1959). As a result of the

opinion in the ‘case of Kemble v. Stanford, op. cit., Kemble

_ moved to intervene in the Maricopa County Superior Court case,

and the motion was granted. Certiorari to the U. S. Supreme Court

“was defied in the case of’ Porter v. Stanford, 374 US. 829, 83

S.Ct. a3s 2 LEd2d 66. (1962).

While this matter was being determined: by the* Arizona Su-

\ preme Céurt, a writ of execution was fssued in August, 1959, and

at the resulting sheriff’s sale, Gladys Porter purchased the interest

_of Arnold Porter in and to the Arizona Hotel property. alin Janu-

‘ary and February of 1960, the Porter sisters and Kemble moved to

_vacate and’ set aside the execution. sale,, which was denied. The

_ sheriff’ s deed conveying the Arizona Hotel property was given to

Gladys Porter, and in April of 1960, Kemble moved. to set aside

the sheriff's deed.-Thjs motion. was also denied and he appealed

to the Arizona Supreme Court. The Arizona Supreme Court held.

in- the case of. Kemble v. Porter, 88 Ariz. °417, 357 P.2d 155

_ (1960) that the otder denying the motion to-set aside the execu-

tion sale was not an appealable order and therefore difmissed the |

appeal. %

The scene now shifts back to the State. of Idah4 where the wife, |

in July of 1959, had filed an answer and counterclaim in the ‘

‘Idaho divorce action: The Porter sisters also intervened in the

Idaho divorce action. Unlilge the action in the Maricopa County

es

{ -

es

=

41

©

Superior Court or the Cochise County Sinton Court, the Idaho

case found all of the \parties to this action, including the husband, :

appearing and. litigat ng the issues. On 28 December, 4960, after

trial in the action, the findings of fact and conclusions of law of

the Idaho divorce decree and the decree of divorce, were entered.

The decree granted the divorce to Gladys Porter and divided the

community property. Gladys Porter was required and did execute

quit claim deeds, assignments and releases, of the Arizona Hotel

, Property in Arizona. This portion of the decree in. Idaho was

appealed by Gladys Porter. The Idaho Supreme Court upheld the

Idaho divorce decree in the case of Porter v. Porter, 84 Idaho 400, .

373 P.2d 327 (1962). * ‘ :

In Arizona; Kemble sid the Porter sisters filed a supplemental

complaint in intervention, praying that the court give full faith

and credit to the Idaho divorce decree. Pre-trial was held the 11th

day of December, 1961, before the Honorable E. R. Thurman,

and the pre-trial order contained the following notation:

“ ‘2’ Exemplified copy of Findings of Fact, Conclusions of

| Law in Idaho Case No. 18556-A

Admitted in Evidence

bi Exer* plified copy of Judgment and Decree—

Idaho Case No. 18556-A |

7 Admitted in Evidence”

Trial. before a jury commenced oh 18 December, 1961; the

‘only evidence presented | was documentary evidence and no one.

testified. At the trial, exhibits “2” and “3” being’exemplified copies

.of the findings of fact and conclusions of law and the judgment

in the Idaho case were offered in evidence. The attorney for’ Mrs.

Gladys Porter objected to the introduction of exhibits “2” and “3”

eand the transcript reflects a discussion concerning whether or not

“the exhibits had been admitted in evidence at the pretrial confer-

‘ence. The trial court sustained the objection to the admission of

exhibits “2” and “3”. The trial: Court did admit into evidence

42 ©

deeds signed by Gladys Porter conveying her interest in the Ari-

zona Hotel property to Arnold Porter and the Porter sisters, as

well as a release of judgment by which Gladys Porter released

the decree of separate maintenance entered in the Maricopa‘County

Superior Court on 14 May, 1959. Kemble and the Porter sisters

rested, and Gladys E. Porter moved for a directed verdict which

was granted by the court. The formal judgment was entered which

provided: | ee ok ‘

“Wherefore, it is Ordered and Adjudged that plaintiffs in

intervention -George C. Kemble, Pauline Leonard and

_Pearline Porter take nothing by their actions and that de-

fendant, Gladys .E. Porter, have judgment against the

plaintiffs in intervention and each of them for her costs

incurred and expended herein, and that defendant have -

execution therefore against the property of the plaintiffs

in intervention .in each of them.” '

Motion for new trial was filed and denied, and the. Porter sisters

and Kemble bring this appeal. The receiver heretofore appointed

in .the separate maintenance action is stjll in possession of the

Arizona Hotel property. ay

- The basic question before this court is this: When real property

_is located in Arizona and in the possession of the Arizona Su-

‘ perior Court through‘a receiver, may the Arizona Superior Court

refuse to give full faith and-credit to a judgment of a court of

- general jurisdiction of a sister state (Idaho) adjudicating claims

to the title of such property when all the parties claiming an

interest in the Arizona property were before the Idaho court and |

Submitted to the jurisdiction of the Idaho. court.

Article. 4, Section 1 of the Constitution of the United States

reads as follows: ae

“Section 1. Full Faith and Credit shall’ be given in each

State to the public Acts, Records, and judicial Proceedings

of every other State. And the Congress: may by general

Laws prescribe the Manner in which such Acts, Records,

*

at

B

and Proceedings shall be proved, and the Effect thereof.”

‘Congress has enacted such legislation ‘prescribing the manner in|

which these records may -be proved | and the legislation reads in ]

part as follows:

“The records anid: iadicial proceedings of any court of any

such State, Territory or Possession, or copies thereof, shali

. be proved’ or admitted in other courts within the United

States and its Territories and Possessions by the attestation

of the clerk and seal of the court annexed, if a:seal exists,

together with a certificate of a judge of the court that the ~

said attestation is in proper form.

“Such ‘Acts, records ‘and judicial proceedings or copies

thereof, so authenticated; shall have the same full faith

and credit in every court within the United States and its

Territories and Possessions as they have by law or usage >

in the courts of such State, Territory or Possession from

which ‘they are taken.” 28 U.S.C.A. § 1738.

We have examined exhibits “ye and “3”, being the exemplified :

copy of the findings of fact and conclusions of law of the. Idaho

District Court, and the exemplified copy of judgment and decree

in Idaho District ‘Court and we find that they comply with the

constitution and statutes thereof. We believe that it was error for

- the trial] court to exclude such exhibits from evidence.

It should be noted that all of the parties involved were present

and appeared by ptrson and by counsel in the Idaho court. We

hold that in the instant case the Arizona “Superior Court must,

’

under the full faith and credit-clause of the United States Con- —

stitution and statutes enacted thereto, give full faith and credit

to the decree of a sister state. This extends to land or real prop-’

erty situated within the jurisdiction of the Arizona court:

“We think, however, that where the: court of a’ sister

state, having jurisdiction of the person of the defendants

and jurisdiction to bind their consciences, enters a decree

ordering a conveyance of land located in Wisconsin, the

And: .

4

findings of fact supporting such a decree must be given

the effect of res adjudicata.” Bailey v. Tully, 242 Wis. 226

at t 233, 7 N.W.2d 837 at 840, 145 A.L.R. 578 (1943).

“It is a settled doctrine that a court of equity, having

acquired jurisdiction over the person of the defendant, has

jurisdiction to enter any decree which may concern or

‘affect lands situated in a foreign state to the same extent

and as fully as though these were situated within the state

where the court: has its sé#us.” Butterfield v. Nogales Cop-

per Co., 9 Ariz. 212 at 216, 8Q P. 345, at 347 (1905).

That there is a decree of separate maintenance in the Arizona

court is not, in our opinion, binding upon the Idaho court where

in the Arizona decree the husband was not subject to im personam

jurisdiction and did not actively participate in that decree. Asc:was ,

stated by the Idaho Supreme Court:, oe

And:

a.

“New York considered this question in Lynn v. Lynn, 302 :

N.Y. 193, 97 N.E.2d 748, {28 A.L.R.2d 1335]. In that

* case Mrs. Lynn in 1942 ‘secured a separate maintenance

‘ decree which provided $85.00 per ‘month for herself and -

child. In 1943 the husband commenced an action for di-

vorce in Nevada wherein ‘the wife appeared personally .

_and-by counsel. Upon trial of the cause the Nevada court

entered a decree of divorce which recited the wife made

no claim-for alimony or support and which made no pfo-

vision for support of the wife or child. The New York

court held the Nevada divorce terminated support money

obligations imposed by the prior New York’ judgment.”

Porter v. Porter, supra, 84 isaho at _ 408, 373. P.2d

at it 331.

“Appellant, having submitted, to the jurisdiction. of the

court and having submitted her interest in the community

estate to the trial court for determination, is now bound —

45

by ehat determination.” Porter v. Porter, 84 Idaho page

409, 373-P.2d page 332. —

Gladys Porter, having submitted herself to the jurisdiction of the

Idaho court, cannot now complain if the findings of fact, judgment

_.and orders of that court are now binding upon her. The fact that

title to the Arizona Hotel property was ‘deeded away by her upon

order.of the Idaho court is of no avail. As has also been stated:

“We are of the opinion that had a request been made the

trial court would have had the authority to compel plain-

tiff to convey .her interest, if any, in the real estate in

question to defendant because at the time of the trial the

court had ‘jurisdiction over the parties. It could have en- .

forced that judgment by proceedings in contempt. How-

‘ever, if plaintiff had failed to execute the deed in compli-

‘ance with the order of the court the judgment would have

"been inoperative as to conveying title. to the property in»

Pennsylvania.” Hoppe v. Hoppe, 181 Kan. 428 at 433,

312 P.2d 215 at 220 (1957). ,

In the instant case, Gladys Porter.conveyed-title to the property

as requested by the court,,and we feel that that is binding upon

Gladys Porter. The United States Supreme Court recently dis-

cussed this matter in a case concerning land lying between Ne-

braska and Missouri. The Nebraska court litigated the matter and

the losing party went to Missouri claiming that the land was lo-

cated in the State of Missouri. The. United States Supreme Court .

_ discussed the matter as follows:.

“With respect to questions of jurisdiction over the person,

this principle was unambiguously established in Baldwin

v. Iowa State Travelingmen’s Ass’n; 283 U.S. 2¢4, 31

S.Ct. 517, 75 L.Ed. 1244. There it was held that a federal

court in Iowa must give binding effect’to the judgment to —

a federal court in Missouti despite the claim that the origi-

nal court did not. have jurisdiction over the defeindant’s

_ Person, once it was shown to the court in Iowa that that

/

A

ag

: 46 : rates ¥ ¢,

“f a

nin, had been fully litigated in the Missouri forum, °

‘Public policy,’ said the Court, ‘dictates that there be an

end of litigation; that those who have contested. an issue

shall be bound by the result of the contest; and that mat-

ters once tried ‘shall be considered forever settled as be-

tween the parties. We see no reason why this doctrine

_ * should not apply in every case where one voluntarily ap-

pears, presents his case and is fully heard, and why he

should’ not, in the absence of fraud, be thereafter con-

“cluded by the judgment of the tribunal to which he has

submitted his cause.’” Durfee v. Duke, 375 U.S. 106 at.

111, 84 S.Ct. 242 at 245, 11 L.Ed.2d 186 (1963).

. _ “In Treinies [Treinies v. Sunshine Mining Co., 308 U.S.

66, 60 S.Ct. 44, 84 L.Ed. 85}, the rule was succinctly

stated: ‘One trial of an issué is enough. “The principles

of res judicata apply to questions of jurisdiction as well as

to other issues,” as well-as to jurisdiction of the subject

__. ,.Matter as of the parties.’ ” 375. US. 106 at 113, ‘84 S.Ct.

> at 246.

The court went on to say:

“While.this Court has not before had occasion to consider

_ the applicability of the rule * * * to a case involving

real property, we can discern no reason why the rule

should not be fully applicable.” 375 USS. 106 at 114, 84

_ §.Ct. 242 at 247.

Gladys Porter further contends that since the Arizona Hotel

property is in the possession of the Maricopa County Superior

- Court through a duly appointed and acting receiver, that the Idaho

‘court may not interfere with such possession, and that, therefore,

it could not render a judgment in Idaho concerning the Arizona

~ . Hotel property. We will concede that the Idaho court may not

interfere with property in custodia legis of the Maricopa County

court. However, the Idaho judgment and decree did not interfete

with the possession of the property by the Arizona court. The

47

deeds executed mn delivered by Gladys ainsi pursuant to the

~~~Fdaho- judgment a and decree, did not in any way interfere with the

. Arizona court’s possession ‘of the Arizona Hotel property, but the

Idaho court, having jurisdiction over the parties, cannot be de-

. ptived of its right to adjudicate in personam rights between these ~

patties, and wé hold that the Idaho court having this jurisdiction

over the parties, that the Arizona court, under the circumstances,

must give full faith and credit to the Idaho decree when the Ari-

zona court determines the interest of the parties in and to the

Arizona Hotel property. As has been stated: -

“It appears therefrom that, where one court of competent

jurisdiction has taken possession: of the res involved in

an action filed in such court, no other court may interfere

with such possession. * * * The rule, however, is limited

to actions which deal either directly or potentially with

specific property or debts, and, when a suit is strictly i» —

personam, with nothing more than a personal judgment

sought, there is no conflict with a prior action in another

jurisdiction either before or after judgment, even though

the same issues are to be tried and determined, the reason

of course being that the second suit does not oust the j juris-

diction of the court in which the first suit was brought, nor

does it lead to a conflict of authority.” Forst v. Intermoun-

tain B. & L. Ass’n, 49 Ariz. 246 at 253 and 254, 65 P:2d

| 1379 at 1382 ‘ 1937).

Also:

“Under the doctrine “ res judicata an existing final judg-.

ment rendered upon the merits, without fault or collu-

_ sion, by<a court of competent jurisdiction, is conclisive

as.to every point decided therein, and also as to every

point raised by the record -which could have been de-

cided; with. respect to the parties or their privies, Hoff

_ v. City of Mesa, 86 Ariz. 259, 344 P.2d 1013 (1959).

Moreover, if two actions involving the same issues and

_ parties are pending at the same time, when a judgment

° ¢

SASS han ete R TIS Ra MEDAN EA Gf CWA Ck ON te i eI A nt EN te Ta RE Gt

48

in one becomes final it may be raised in bar of the other,

regardless of which action was begun first (Citations

omitted. )” Day v- Wiswall’ 6 Escate, 93 Ariz. 400 at 402,

381 P.2d 217 ‘at 219 (1963). > :

For reasons stated herein, the matter is hereby ‘reversed and re-

manded to the trial court for proceedings not inconsistent with

this opinion... es

| STEVENS, G. J. and DONOFRIO, J. concurring.

49

Fe OPINION OF THE IDAHO SUPREME COURT

84 Idaho 400, chic P.2d 327 (July 12; 1962)

a+ ——

oo —a—

W. A. PORTER, I Plaintiff, CrcteDidendaes -

and Respondents, :

V.

"Gladys PORTER, Defendant, Cross- Complainant

and Appellant.

‘Peatline PORTER and Pauljpe. Porter

Leonard, Plaintiffs in Intervention .

and Respondents, \ .

W. A. PORTER, Defendant in Intervention

and Respondent \

and \

~ Gladys Porter, Defedant in Intervention |

and Appellant.

No. 9044.

Supreme Court of Idaho.

July 12, 1962.

Jerry Giesler, Beverly Hills, Cal. (since Sicnds: Wilson &

‘Wilson, - -Phoenix, Ariz., Givens, “ aa, Doane & Givens, Boise,

for appellant.

E. L. Miller, Hawkins & Miller, oot d ‘Alene, for respondent.

-J. Ward Arney & Pat W. Arney, Coeur d’ Alene, for i ——|

McQUADE, Justice. = 7

This appeal is before this Court upon the judgment rol] only.

_ Therein it appears that the trial court entered findings. of fact and

conclusions of law after having considered oral and documentary -

evidence. In keeping with the findings of facts and conclusions .

of law, a decree was entered, from a portion of which this appeal

had been taken.

<<

_ oe

50 _

e

! That portion of the decree from which the defendant-appellant

takés this appeal is section 17 thereof:

“It is further ORDERED, ADJUDGED AND DE-

CREED that thé defendant shall dismiss any and all :pro:

* ceedings by her maintained against the ‘plaintiff or inter-

’ venors, and either of them,'in the State of Arizona, includ-

ing the removal of any and all receivers affecting and

properties designated ‘herein as the /Arizona Hotel, and

that she shall be and is hereby enjoined from maintaining,

prosecuting or instituting any actign against the plaintiff

or intervenors affecting those properties known. as‘ the

Arizona Hotel from date hereof, and shall’ further release |

any judgment or judgments which she has obtained against _

or affecting said properties known as the Atizona Hotel

which she may. have acquired.” :

A motion to dismiss the appeal was’ made by respondents on

‘the following ground: F

“*"* * that it is an attempted partial appeal from a

portion of a judgment which portion is not independent,

-” sepafate and distinct from the entire Judgment.”

Appellant’ s’ single assignment of error is as follows:

“ “The court “erred in enjoining appellant from main- .

| taining or. instituting any action or from receiving the

_ benefits of any judgment pteviously obtained against or

affecting the: property. known as the Arizona Hotel.”

»

An appeal may be taken from a portion of a judgment by vir-

tue of statutory, authorization. I.C. § 13-202: This Court, in Stearns .

v. Strom, 68 Idaho 392, 195 P.2d 337, applied the rule from -8

Bancroft’s Code Prattice, sec. 6267, p. 8325, at p. 8326, relating

to separability of a judgment as applied to, our statute:

“The rule, however, is subject to the limitatior™€Htat

_ the part of a judgment from which an appeal is taken

must be separable ftom the remainder, or, in other words,

the part ieee ‘the mapellags is aggrieved must be so

51

far distant and independent that it'may be adjudicated on

appeal .without bringing up for review thé entire judg-

ment or order. Unless the part of the judgment. appealed

from is separate and distinct from the other issues with

which the judgment deals, there is an objection in limine

« in that the statute directs the appellate court to affirm,

modify ot reverse the judgment of. the trial court, or to

order a new trial, and this provision cannot be ‘obeyed

_ while @ portion of the case remains in the trial court; in

such case, therefore, an appeal from part of the judgment

will be dismissed, * * *’” yb ty

Appellant contends that the restriction is in excess of the courts

equity powers and wrongfully restricts her right to enforce the

_ Idaho judgment .ifi Arizona by the usual proceedings on execu-

tion. Considered: solely as a jurisdictional question we conclude -

that the appeal taken from only a: portion of the judgment is

severable from the remainder, although it*is closely related to'the

“trial court’s division of community property. The respondents mo-

‘tion to.dismiss the appeal. is therefore denied:’ |

There being no cttanscript of the proceedings, it’ is necessary .

to set forth appropriate portions of the trial court’s findings of fact:

“Plaintiff and defendant are husband and wife, having

been intermarried on June I, 1940, at Detroit, Michigan. | °

_ “As issue of the marriage of plaintiff and defendant, —

there have been born four children, three-of which chil- ‘

* dren are now minors, to-wit:

WILLIAM A. PORTER, ‘Jr., age 17,

RICHARD PORTER, age 14, and _

TOM CLARK PORTER, age 4.

. “The intervenors are sisters of. plaintiff and are resi- |

- dents of the State of California. — toe eh us

“All parties have appeared generally herein and have

. sought affirmative relief from the court herein.

a

“The minor children, issue of the marriage of plaintiff

and defendant, as in Finding ‘No. IIE. found, have- been,

during said proceeding, within the State of Idaho, and”

subject to the orders of this court. The court finds that it

has personal jurisdiction | of at parties to this proceeding

\and personal jurisdiction of the three minor children of ©

the pas and defendant, >

“The plaintiff and defendant were residents of Kootenai

~ County, State of Idaho, residing at Hayden Lake, Idaho,

“with their. family, unt December, 1958, at which time

_ the defendant lefl the marital home. The plaintiff has

* been continuously a resident of the State of ay, ene

‘out, until time of trial.

—-

“Prior to the marriage of plaintiff and defendant, ae

during the gfartiage, the plaintiff, intervenors, and a half-

brother of plaintiff: and intervenors, Andy Rickett, were

engaged in the hotel business, owning and operating hotels

in various states under corporate ‘and parsnership owner-

; “ :

- ships. That one of the partnership ownerships were styled .¢

_ Rickett Hotel System, a-copartnership, which, in 1948,

changed the name from Rickett Hotel System to Contin-

ental Hotel System, a ee

4

“Ownership of stock in the various corporations except

for qualifying shares, were held.equally by the community

‘of the plaintiff and defendant, the intervenors and Andy

Rickett, the haJf-brother. The- partnership interest in the

- Rickett Hotel System and as succeeded by the Continental |

Hotel System; ; a copartnership, was likewise equally held

yf the community of the. plaintiff and deféndant; with

the intervenors and Andy Rickett. In 1948 Andy Rickett - |

~ sold his interest -in all stock in the corporations and the

‘partnership interest in the Rickett Hotel Hotel, System,

or the @pntinental Hotel System, a copartnership, to the

community of the plaintiff and defendant, and thereafter

53

the interest of the community of plaintiff and ‘defendant

. in and to the Continental Hotel System, a co-partnership,

was a 2/3 partnership interest, and the intervenors each .

held a 1/6. partnership interest in and to the Continental

" Hotels System, a co-partnership.

“All stock held by the ‘plaintiff and defendant in the

various corporations is community property. The 2/3

partnership interest owned by plaintiff and defendant in

the Contiriental Hotels System, a co-parthership, is com-

munity property.

“The court finds that the Arizona Hotel, described as

follows, to-wit:

<2 oe ee *

is owned by the Continental Hotels System, a co-partner-

ship, and even though the deed to said properties was

taken in the names of plaintiff and defendant herein, said °

properties were purchased with funds belonging. to the

partnership known as the Continental Hotel System. All

takes and expenses paid thereon were paid by the’ co-

partnership of the Continental Hotel System, and said

Arizona Hotel and its allied properties were at all times -

carried upon .the books and. records ‘of the co-partnership

as an asset thereof.

and defendant in Hayden Lake, Idaho, i December of

“The defendant left the. marital mie plaintiff ©

1958, and thereafter instituted an action in\the State of |

. Arizona ° seeking decree of separate’ maintenance. The

plaintiff was not ‘personally served in that action within

the State of Arizona, nor did the plaintiff appear therein.

.;The decree of separate maintenance of the State of Ari-

zona, awarded the defendant money judgment, which the

defendant has sought to enforce herein by way of affirma-

‘tive defense and counter-claim. e

~

4

BN his lan aa aed cil

54

“Plaintiff has failed to.prove that the defendant was

guilty of mental cruelty and the court finds that the plain-

__ tiff is not entitled to a divorce by way of his complaint. |

“The court further finds that plaintiff has been guilty

of conduct toward the defendant causing defendant griev-

ous mental suffering, and that defendant is therefore en-

titléd to a divorce from said plaintiff. r

“* '* * The court finds that the plaintiff made<a gift

of said Hayden Lake home unto the defendant, of any:

* community interést he had in and to said property * * *”.”

* * * * -* #

% °

“The court finds that the defendant is a fit and proper

-” person to have the care, custody and.control of Tom Clark

Porter, agt 4, subject to the right of reasonable visitation

by the plaintiff herein, and that the plaintiff shall .pay

unto the defendant for the care, support and maintenance

and education of said minor child, the sum of $200.00

per month.

“The court finds that the plaintiff is a fit. and proper

person to have the care, custody and control of William

A. Porter, Jr., age 17, and Richard Porter, age, 14, subject

to the rights of reasonable visitation by the defendant.

“The court finds that the defedant is entitled and shall

be awarded, in additiofrte her sole and separate properties

heretofore found, the following described community

property, as her sole and separate property, free and clear

of any claim of the plaintiff: .

“1. All household furniture located and within the

Hayden Lake Home, as heretofore found and described.

“2. One 1953 Oldsmobile automobile in her possession.

“3, All clothing, personal effects and ee .of Gladys

E. Porter, the defendant.

“4. All stock owned by the community of W. A. is.

ter and Gladys E. Porter, in and to the Rickett Hotels, Inc.,

=

7

the Continental ‘System of America, Inc., free and clear ,

of any claims of W. A. Porter.

“5. Four Occidental Life Insurance policies.

“6. All monies due and remaining from the sale of the

Boundary County property. Meee

“The court finds that the plaintiff is entitled to have ,,

as his sole and separate property, free and. clear of any

claim of the defendant, subject to the rights of the inter- - .

venors; the following described property:

“All right, title, interest and equity that the community

of Gladys E. Porter and W. A. Porter had in and to the

Continental Hotels System; a co-partnership, being a 2/3

interest in and to said co-partnership. The intervenors own

and hold a 1/ 6 interest each in and to said Continental

Hotels System, a co-partnership. . -

“The plaintiff shall further have as his sole separate

property, the follawing described assets: |

“1. One 1959 Cadillac automobile.

“2. His personal effects, including guns, fishing equip-

ment and sports equipment.

“3. All other remaining community property of the

plaintiff and defendant not permanently awarded unto the

defendant herein.

“The court finds that the interest of Pauline Porter

Leonard: and Pearline Poster in and to the Continental

‘Hotels System, a co-partnership, formerly the -Rickett

Hotel System, is a bona fide partnership interest therein, ~

having been purchased and acquired by them by the con-

tribution of capital assets in the early formation of said ”

hotel enterprise. The Court further finds that at all times

partnership tax returns have been filed with both the

Federal: and State governments and that the interest of

the intervenors has at all times been so declared by the —

_ « tecords, books and files of said co-partniership. -

56

¢

“The court further finds that Pauline Porter Leonard

and Pearline Porter were not merely riominal partners or

employees of said ‘partnership, but that their interest orig- ~

inated in the beginning of such hotel enterprise and that

they have held and now hold stock interest in various

corporations to the same extent as their ownership exists

in and to the Continental Hotels System, a .co-partnership.

“The court finds that the plaintiff is able to pay and

that the defendant is entitled to receive the sum of

$1200.00 per month as alimony

“The court finds that the defendant has, by virtue vel her

“ma in the State of Arizona, initiated receivership pro-

ceedings as against that. property heretofore found and

denominated-as the Arizona Hotel, belonging to the Con-

tinental Hotels System, -a co-partnership, and that the

defendant ‘shall dismiss all proceedings in the State of

Arizona incliding the removal of the réceivership affect-

- ing that ‘property denominated as the Arizona Hotel, and

that the intervenors should dismiss any and all proceed-

ings or suits they have initiated within the State of Arizona

arising out of or in any way affecting that property desig-

nated as the Arizona Hotel.

“The court finds that the plaintiff and defendant should

transfer by deed unto the intervenors a one-sixth interest

each in and to all properties belonging to: the Continental

Hotels System, a co-partnership, but standing.in the name

of W. A. Porter: and Gladys E. Porter. The court further

finds that W. A. Porter and Gladys E. Porter; are trustees

for said properties designated as the Arizona Hotel, stand-

ing in their names, for the use and benefit of the ed aves

nership, the Continental Hotels System.”

Appellant argues that she is not contesting award of alimony,

nor division of community property, but instead is questioning

the. trial court’s restrictions placed upon the enforceability of a

57

. ; a o- :

_ judgment. Appellant denies the trial court’s jurisdictional author-

ity to enter a judgment which bears upon the enforceability of the

judgment in a sister state.

_ New York considered this question in Lynn v. Lynfi, 302 N.Y.

- 193, 97 N.E.2d 748. In that case Mrs: Lynn:in 1942 secured a.

separate maintenance decree which provided $85.00 per month

for herself and child. In 1943 the husband commenced an action

for divorce in’ Nevada wherein the wife appeared personally and

by counsel. Upon trial of the cause the Nevada court entered a

decree of divorce which recited the wife made no claim for ali-

mony or support and which made no provision for support of the .

wife or child. The New York court ‘held the Nevada divorce ter- -

minated support money obligations imposed by the -prior New

' York judgment. — | rose

‘The question here advances one step further than termination

of a separate maintenance décree. This concerns the fundamental

authority of the trial court to divide community property and, in

apportionment thereof, to prohibit one of the parties from enforc-

ing a pre-existing judgment against that share of the community

awarded to the other spouse. \

Ohio, in Gilbert v. Gilbert, 83 Ohio State 265, 94 N.E. 421,

35 L.R.A.N.S., 521, disposed. of a similar“problem. In that case,

the wife had secured an award for support money in Ohio and

_ several yéars thereafter appeared in person in a South Dakota

divorce action where Property rights were considered and con-

cluded. Subsequently, the wife brought an action in Ohio to en-

force her rights under the Ohio order. The Ohio court reasoned.

_ that the wife had submitted all her rights under the support money

order and any other claims or demands to the South Dakota court,

and had become estopped again to assert any right she might have

had under the original Ohio decree which ,was determined by the

South Dakota court. | ;

Although appellant was.a resident of Arizona she submitted

to the jurisdiction of the Idaho Court for determination of her’ -

58a

rights. This factor was fundamental in the Lynn case, supra,

wherein it was said: -““The additional factor present in this case

operated to give the Nevada court jurisdiction of the wife’s per-

son ‘aad, by that token, vested thé tribunal with power to adjudi-

cate, the wife’s right of support as well as the parties’ marital

status.. That being so, our conclusion is here compelled by com-

mand of the full faith and credit clause, for, as the Supreme Court

had recently declared, Sherrer v. Sherrer, supra, 334 U.S. 343,

355, 68 S.Ct. 1087, 1093 [92 L.Ed. 1429], ‘If in its application

local policy must at times be required to give way, such “is part Of

the price of our fedegal system.” Williams v. North Carolina,

1942, 317 US. 287, 302, 63 S.Ct. 207, 215 [87 L.Ed. 279]}.’”

Appellant in arguing this case advances the theory that the trial

court tried the title to the Arizona property. We do not agree

with such reasoning as it appears the court was computing and

° dividing the community debts and assets pursuant to in personam

jurisdiction of the parties.

Paragraph 17 of the judgment makes specific reference to these

matters. Appellant, having’ submitted to the jurisdiction of the

court arid having submitted her interest in the: community estate

to the trial court for determination, is now bound by that deter- |

mination. No appeal was taken by appellant from the distribution

_ of the community estate as allocated by the district court. —

Section 17 of the judgment enjoins the appellant “from main- |

taining, prosecuting or instituting any action against. the plaintiff

‘ or intervenors affecting those properties known as Arizona Hotel

from date hereof.” This enjoinder will prévent appellant from

exercising any rights which she may have outside the present ac-

tion and to all rights which may enure to her in the future by

virtue of this decree.or otherwise.,

. Appellant should not be precluded from enforcing her rights

under this decree in this state or any other state providing she has

fulfilled her, obligations as provided therein. To this extent the

trial court is directed to amend its decree.

' 59 |

The ee is modifiéd and as modified i is hereby affirmed.

Costs t6 respondent. .

SMITH, C. J., TAYLOR. and McFADDEN, JJ., and YOUNG,

D. J., concur.

%

.

“y

¥

aa

4, SEPARATE MAINTENANCE DECREE OF

SUPERIOR COURT, MARICOPA COUNTY, ARIZONA

(May 14, 1959)

(A.LR., pp. 31-36.)

(Title of Action) a alot

"_. DECREE OF SEPARATE

MAINTENANCE >

_ This cause, coming on regularly to,be heard on the 14th day

of May, 1959, before. the Court sitting without a jury, and

GLADYS E. PORTER appearing in person and by her attorneys,

‘WILSON & WILSON, and. the defendant appearing neither in

person nor by counsel, and it appearing that the defendant was

duly served with process herein, to-wit: by publication of the *

said summons in the Weekly Gazette, a newspaper of general

circulation i in the County of Maricopa, State of Arizona, the first

date of publication being on the.24th day of February, 1959, |

and the defendant not’ having answered plaintiff's Complaint

herein within the time providéd by law, and evidence having

been introduced on behalf of said plaintiff at the hearing of this °

cause, and said cause having been submitted to the Court for its

consideration and decision, and the Court having considered same

and being fully advised in the law and the premises thereof, the

Court finds: That all of the allegations contained in the Complaint

are true, and that a decree of separate maintenance should be

granted as prayed for in said Complaint.

The Court further finds that the plaintiff is a fit and proper

person to have -the care, custody, control, and education of the

- minor children of the parties hereto within the jurisdiction of

this Court, to-wit: SANDRA JEAN’ PORTER, age sixteen (16)

years, WILLIAM ARNOLD PORTER, JR.,.age fifteen (15)

_ years, TOM CLARK PORTER, age three (3) years; the Court

further finds that Three Thousand ($3,000.00) ‘Dollars a month

“

_ for the. permanent support and maintenance of the plaintiff and ~

i

t

pean ee eer

e: : 61

the minor. children of the parties in her care, Custody and control,

is a reasonable amount to be allowed plaintiff. The Court further ~

finds that, becguse of the extraordinary and unusual and compli-

cated nature and scope of this matter, the sum of Fifteen Thou- . ,

sand ($15,000.00) Dollars is a, reasonable attorneys’ fee to be. ’

paid’ plaintiff’s counsel, JERRY GIESLER and WILSON & WIL-

SON. The Court further finds that the plaintiff herein has a sup-

port order dating from the Ist day of February, 1959, in the sum_

of Three Thousand ($3,000.00) \ Dollars as and for attorneys’

. fees, pendente litg, to plaintiff's attorneys, JERRY GIESLER ‘and

WILSON & WILSON, and that the plaintiff should have a lien

on the community property of the parties found within the juris-

diction of this Gourt in the amount of Ten Thousand Two Hun-

dred ($10,200.00) Dollars, being the-support due and Owing her . °°

from the Ist day of February until the 12th day of May, 1959,

together with the sum of Five Thousand ($5,000.00) Dollars - .

4s and. for the attorneys’ fees pendente ‘lite. The Court further

finds that all of the community Property of the plaintiff and de-

- fendant located in the State of Arizona should be charged with

the support of the plaintiff, and. for that purpose any community

interest in the Arizona Hotel, being |

r Lots 1, 3 and 5 of Block 74, Original townsite of Phoenix,

according to the map of record in. the office of the County °

Re€order of Maricopa County, Arizona,

.- IS to be used for the payment of plaintiff's and the minor children’s

support and maintenance, and should be set aside for that purpose.

_ THEREFORE, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED; © | |. :

1. That plaintiff be and she is hereby authorized to live sepa-

fate and apart from the defendant. san

<2: Fhat_the plaintiff is to receive for herself and the minor

children of the parties hereto, Support and maintenance in the

- sum of Three Thousand ($3,000.00) Dollars per month, com-

S. mencing on the 15th day of May, 1959, and a like sum on the

\

r 4

>

eae

15th day of each and every month cherealier until the further

order of this Court. ° eae

3. That the plaintiff-have the care, custody; “aud and cc

* tion of the minor children of the parties hereto now within the

jurisdiction of this Court, to-wit: SANDRA JEAN PORTER,

age sixteen (16) years, WILLIAM ARNOLD PORTER, JUN-

JOR, age fifteen (15) years, and TOM CLARK PORTER, are

three (3) years, .

‘4, That the plaintiff have a lien on all of the community’

property of the parties hereto for support under a pendente lite

order, which has not yet been paid to her, in the sum of- Ten

- Thousand Two Hundred ($10,200. 00) Dollars, together - with.

attorneys’ fees in the sum of Five Thousand ( $5,000. 00) Dol-

lars, and court costs pendente lite. \

%

5." That ‘any community interest of the parties hereto in ‘the 7

Arizona Hotel, being — \

‘Lots 1, 3 and 5 of Block 74, original townsite of Phoenix, =

according to-the map of record in the office of the eid

Recorder of Maricopa County, Arizona,

‘is hereby charged with payment of the support to the plainciff

and that the tien hereinabove set forth is to affix to any com-:

"munity interest in ‘the Arizona Hotel.

6.” That the plaintiff is to receive the sum of Ten Thousand

‘4 $10,000. 00) Dollars’as and for attorneys’ fees, together with

her costs herein laid out and expended. |

, DONE IN OPEN COURT this 14th day of May, 1959.

° \ Judge of the Superior Court

| /s/R. C. Stanford, Jr.

(FILED: May 14, 1959.)° -

- 63

5. COMPLAINT IN IDAHO DIVORCE ACTION

(Supp. A.R.; pp. 1-11)

a+ -_

' PEARLINE PORTER AND PAULINE PORTER LEONARD, .

| PLAINTIFFS IN, INTERVENTION x

EXHIBIT NO. 14

ae (Marked For Identification )

IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL

DISTRICT OF THE STATE OF IDAHO, IN AND FOR

: - THE COUNTY OF KOOTENAI a

oe . es No. 18556A

poor COMPLAINT

W. A. PORTER, | '

ai 3 Plaintiff,

Se. i

"GLADYS PORTER, nS 5

Defendant.

Comes now the above-named plaintiff “and for cause of action -

_ against the above-named defendant complains and alleges:

a

- That plaintiff is and for several-years' last past has been a bona |

fide resident of and domiciled in Kootenai County, Idaho, resid-”

ing at Hayden Lake,” «. if ;

a Ao. II. . |

That plaintiff and defendant were married June“, -1940, at

Detroit, Michigan, and ever since have been and now are hus-

. bandand wife... | A :

oan IL. |

That as issue of said marriage there have been born four chil-

drén whose names and ages are as follows: Sandra Jean, age up-

wards of sixteen; William A: Porter, Jr., age ies of fifteen;

—

>

o

64

” Richard péteer, age peel of ewelve, and Tom’ Clark: Porter,

age upwards of two years.’

That; during the ‘month of December, 1958, the deténdant,

* - Gladys Porter, without notice to the plaintiff, departed from the

home of the parties: to this-action at Hayden Lake, Idaho, and -

. took with her the minor children, Tom Clark Potter and Sandra , ©

Jean. Porter, , presu aptively for spendirig the Christinas Holidays

in Los’ Angeles, ind ‘with the specific understanding that she

9 would return tothe home of the parties to this action at Hayden

Lele, Idaho, following the Holiday Season.

‘That William A.: Porter, Jr.. is attending a Military School in”

California, but is a resident of and domiciled with the. plaintiff at

_ Hayden Lake, Kootenai County, Idaho, and that Richard Porter ~

~ “is living in the home of the parties to this action at Hayden Lake,

Idaho, attending school in Kootenai County, Idaho, and is in the

_ actual ‘physical care, custody and control. of the plaintiff. That the

childrén, William A. Porter, Jr: and Richard, have éxpiessed ~

desire to this plaintiff that they remain’ in his absolute care, cus-

tody and control and plaintiff alleges that it is for the best in-—

terests Of the minor children, Tom Clark Porter, and Sandra Jean

‘Porter, that their absolute care, custody and control be awarded

to the plaintiff, subject to the order of this Court as to right of -

_ reasonable visitation on the part. of the defendant, and that upon

- the ultimate disposition of this case, that reasonable provision be

made not only for the custody of the said children but for their

care and support. |

: That the defendant has ‘refused to return to the home of the:

parties to this action, the domicile of the entire family, and has

been traveling in at least the States of California and Arizona,

has refused to divulge to the plaintiff, her whereabouts and has

- refused. to permit the plaintiff to teasonably communicate with _

her or with the two minor children, Sandra Jean and Tom Clark .

Porter, and that this plaintiff has been deprived of the right of

communication with: said last two named children, and that said

t

_ longings, clothing, etc.

es.

"defendant has secreted herself and the children from the plaintiff

im either California or Arizona or some other place, although her

place of permanent residence and domicile is that of Kootenai

_ County, Idaho.

That except for traveling apparel, so far as is known to this

plaintiff, the defendant has left at the home of the parties hereto, :

at Hayden Lake, Kootenai County, Idaho, all of her personal be-

That the home at Hayden Lake, Idaho, has been maintained

‘gontinuously for the benefit of the patties to this action ‘and their -

children, as it was. used for the past several years and as it was

accepted by the defendant when residing with the plaintiff and

their children.

That said defendant has refused to return to the home of the

patties hereto, the domicile of the family and their minor children,

and has so concealed herself as to make impossible personal con-

tact .between the plaintiff and the defendant, and _ this. plaintiff

and: the two minor children, Sandra Jean and Tom Clark Porter.”

That it is for the best “interest of the minor children and the

parties to this action that the plaintiff be awarded, subject to the

further order of this Court, the care, custody and control of all

- four minor children, Sandra Jean, William A. Porter, Jr., Richard

Porter, and Tom Clark Porter. The ‘community property assets,

that would provide security for the Support, maintenance and

education of said minor children, are either situate in or subject

. . . * . id

to the jurisdiction of the State of Idaho.

There are cettain property interests in hotels in various states

of the United States; that these: interests are many and varied and

consist of partnership, leasehold ‘and Corporate interests, which

“either own or operate under lease, hotel: properties in. various’

' States.

IV.

There are community properties situate in Idaho, including the

.&

Hf

66

horhe at Hayden Lake, Idaho, which is a substantial and commo-

dious facility and furnished according to the design and plan of

the defendant for the convenience of herself, the plaintiff and

the minor children. _ eee co

' The other properties include equities in farm properties in

Boundary County, Idaho, and equities in stock interests in several

corporations, partnership interests, and other equities — princip- |

ally in hotel properties, either owned or under lease, most of

which are operated under the name of “Continental Hotels Sys-

~ tem”; the home office of which is situate in Coeur d’ Alene, Koo-

tenai County, Idaho, which is a mere five miles from the domicile

ofthe parties hereto.

That the community . properties referred to are not capable of

division and it would be inequitable and disadvantageous to the

partners involved -in these property interests, as well as to the

parties to this action and.said minor children, to have the prop-

erty interests dissolved, and the assets distributed, or the corporate

stock intérests liquidated, and that to compel such action, except

-after ‘careful review by this Court, would result in a loss to all

of the parties concerned and would adversely affect the security

of the minor children.

That it would be equitable for the Court to award to the re-

‘ spective parties interests which would secure their equities, keep-

ing in mind the Support, maintenance and education of the minor

children, but not so as to dest y the effective and efficient opera-

tion of these investments.

t

That the defendant is wholly. incapable of acting as a partner

or director, officer or partner im any of said corporations or part-

.nership interests, she havinig had.no experience in. the operation

or the management of the Sa aa involved, and particularly,

the hotel business. / , »° ,

. V..

That the defendant has refused to return to the home of the.

parties hereto, has refused to. care for the minor child, Richard,

67

now with the plaintiff, has conducted herself as to evidence that

she is neither mentally or physically competent to care for or

provide for said minor children, has deprived plaintiff of com-

_ panionship and Society, has absented herself from the home, de-

ptived the plaintiff of the custody of Tom Clark Porter, and even

.the right to visit with or see him, and the same is true of Sandra

Jean Porter, the oldest child. -

That the defendant left the State of Idaho with a design and

unjustified purpose to furtively deprive the plaintiff of his paren-

tal and marital rights and for the additional purpose of deceiving

the plaintiff and attempting to deprive the. courts of Idaho of

effective jurisdiction of the parties, their children and property

rights. That said defendant has by such conduct and procedures ;

embarrassed the plaintiff in his business management and opera-

tion of the properties and interest of the parties and this plaintiff's

business associates. The defendant has refused : to return to the -

“home of the parties hereto, long established» at Hayden Lake, and

has concealed herself and the minor children, Sandra and Tom

Clark, who would normally be residing in the home with these

_ patties, and has deprived the plaintiff of companionship, society,

consortium, and has otherwise so conducted herself as to convinc-:

ingly evidence that she no longer has any real love’or affection

for the plaintiff and has questionable love and affection for the”

four minor children, all of which conduct constitutes “EXTREME

CRUELTY.” » | 3

‘VI.

That plaintiff is willing that there be a fair and equitable divi- -

sion made of the community and other. properties of the’ parties -

hereto so as to secure the minor children and to assure adequate

care and support for them during their minority and concurrently

protect the relative equities of the parties hereto, having due re-

gard to the interests of partners, stockholders and creditors in

‘the ventures above-referred to. Many of such properties are in-

capable of complete division and to compel such would be in-

68

equitable and disadvantageous to the partners, the parties to this

action and the minor children, and would result in a’ loss to all

parties concerned. After a hearing upon the merits in this matter,

plaintiff alleges that an award could be made out of income that

would provide security ‘for those minor children and still secure ©

the interests of the parties to this action, and their corporate and

"partner associates and creditors.

WHEREFORE, plaintiff prays for iiaclas and decree as

follows: :

1. For an absolute dais of divorce upon the ground of ' ‘EX-

TREME MENTAL CRUELTY.” P

2. That the Court award to the plaintiff the absolute care, Cus-

tody and control of the minor children of the parties hereto, and

make adequate provision out of the properties of the parties hereto

’ for the care, support, maintenance and education of said minor

‘children.

3. That the Court make an equitable division or distribution _

of community properties, having in mind the adequate security.

for the care, maintenance and support of said minor children.

4, For such other and further relief as to the Court may seem

just and equitable. ae

HAWKINS & MILLER

- [s/ Wm. S. Hawkins

A member of the firm

J | Attorneys for Plaintiff

Res. & P.O. Address:

Coeur d’Alene, Idaho

(Verified by Affidavit of W. A. Porter, dated and sworn to .

May 25, 1959.)

<.

69 :

6. ANSWER AND COUNTERCLAIM *:

IN IDAHO DIVORCE ACTION

(Supp. A.R., pp. 12-37.)

— ——

—— 2s i cme

* (Title of Action. ) |

| _ | ANSWER-AND COUNTERCLAIM

COMES NOW the above-named: defendant, and by way of

answer to the complaint of the plaintiff on file herein admits,.

denies and alleges as follows: ae 2

I.

Defendant denies each and every allegation contained in said.

compaint not specifically herein admitted, and answering para-

graph I of said complaint, ‘admits the allegations contained

therein; : |

Il.

- Answering paragraph II of plaintiff's complaint, defendant ;'

admits the allegations coritained therein. |

2 { .

Answering paragraph III of said complaint, defendant admits

that there have been born four children as issue of the marriage of .

the parties hereto, whdse names and approximate ages aré set forth

‘in said* paragraph; admits that during the month of December,

1958, the detendant departed from the home of the partiés hereto

at. Hayden’ Lake, Idaho, and took with her the minor children,

. Tom Clark Porter and Sandra Jean Porter; admits that William:

A. Porter, Jr., was attending .a military. school in California at

the. time of - the filing of the above-entitled action and is now

. under the- custody and control of the plaintiff; admits that upon ~

ultimate disposition of this case a reasonable provision should ‘be

made, not only for the custody of said children, but for ‘their*care

cand ‘support; admits that defendant has refused to return to the

home of the parties to this action: admits that she has left con-

siderable of her personal belongings: and clothing ‘at the former

70

residence of the parties hereto at Hayden Lake, Kootenai County,

Idaho; admits that there are community property assets that

would provide security for the ‘support, maintenance ‘and educa-

tion of the minor,children of the parties hereto; admits that plain-

. tiff and defendant. have certain property interests in hotels in ~

- various states of the United States; but defendant denies that

her departure from Hayden. Lake, Idaho, in Decengber, 1958,

was without notice to plaintiff; denies there. was any specific

understanding that she would return.to the, home of the parties

following the holiday season; having no knowledge of any ex-

pressed - -desires of William A. Porter, Jr:, agd Richard Porter

‘regarding custody, denies that they have expressed a desire to,

remain in the care, custody and control of the plaintiff, and alleges

in this regard that if. any such-expressions by said children have

been made, they were made because of the coefcion, persuasion

and domination of the plaintiff over said children; denies that

it is for the best interests of the minor children, Tom Clark Porter

and Sandra Jean Porter, or for the best interests of any of the

minor children, that their care; custody and control be awarded

to the plaintiff; denies that defendant has refused to divulge to

plaintiff her whereabouts,.and alleges that plaintiff for some time

has been corresponding with defendant and/or het attorneys, has

known of the whereabouts of the defendant, and on or about the

"30th day of May, 1959, plaintiff came to the residence of the de- —

fendant in Phoenix, Arizona, and with the assistance of two

strong-armed hired men with force and violence held the defend-

ant and her daughter, Sandra Jean Porter, seized Tom Clark

-Porter, the three-year-old son of the parties hereto, and took

him Back to Haydn Lake, Idaho, where, to the best information

and belief of the defendant, he. is now residing with the plaintiff;

‘denies each and every other allegation in said paragraph containd.

° IV. : : , °

Answering paragraph IV of said complaint, defendant. admits

that there aré community properties situated in Idaho, iricluding

“a substantial and commodious home at Hayden Lake, Idaho,

71

certain farm properties in Boundary County, equities in stock -

interests in several corporations, partnership interests’ and other

equities, principally in hotel Properties either owned or under

lease, most of which ate operated under the namé of Continental

Hotels System; denies that the community properties ‘Are ‘not

capable of division or that it would be. inequitable or disadvant-

ageous to the parties or the minor children to have certain of

the property interests dissolved and ‘distributed, or that such

liquidation would necessarily result in -a loss to the Parties to

this action adversely affecting the security 8 the minor: children;

admits that it would: be equitable for the Court to award certain

property interests to the respective parties hereto and that it would

be quite proper to make such awards for the purpose of the sup-

port, maintenance and-education of the minor children; denies

that defendant is wholly incompetent or incapable at all of acting

as a director, officer or partner of said corporation or partnership

- interests, and alleges that her capabilities to act in such action

are not dependent upon her experiénce in the Operation or man- .

“agement of hotel properties. | }

, V. .

Answering paragraph V of said’ complaint, defendant admits -

that she may have convincingly evidenced to plaintiff that she

no longer has any real love or affection for him, and alleges that

any such loss of ‘affection is the result of plaintiff's acts and mis-

conduct, but denies each and ‘every other allegation in said para-

gtaph contained. - | . .

| ie . .

Answering paragraph VI of said complaint, defendant denies

that the plaintiff is willing to be fair and equitable with régard

to a division of anything with the defendant; .admits that after

hearing. upon the ‘merits in this matter an award could be made

out of the income to provide security for.the minor children of

the parties hereto and still secure the interests of the parties to

this action and. their Corporate and parnership associates and

“mo

creditors; having no knowledge or information as to which prop-

erties plaintiff claims to be incapable of complete division, denies

~ that there are any such properties incapable of division, and that

such division would be inequitable and disadvantageous to the

partners, the parties to this action, or the minor children; denies

that such division would necessarily result in’a loss to all parties

concerned.

AFFIRMATIVE DEFENSE

For a further and sefarate defense the defendant alleges:

_ That the right of the defendant, Gladys Porter, to depart’ from

the household of the plaintiff and to remain separate and apart

-from him and to establish a separate domicile in the State of

‘Arizona and to have the care, custody and vo nis education

of the minor children of the parties hereto, to wig Sandra Jean

Porter, William Arnold Porter, Jr., and Tom k Porter, has

been judicated in that certain action brought by the defendant

hesein against the plaintiff herein for separate maintenance in

_ the Superior Court of the State of. Arizona, in and for, the County

of Maricopa, as. case number 551-79, which said suit bor separate

- maintenance was instituted on the’ 13th.day of February, 1959, °

which said State was then and there the separate domicile of the -

defendant; ‘that said Court is a court of general jurisdiction. at

and within said State and County and has jurisdiction to tty

and determine suits forpseparate maintenance; that in her com- -

plaint defendant alleged due and legal grounds therefor as con-.

tained in paragraph VI of said complaint in haec verba as follows:

“VI.

, ° “That plaintiff has conducted herself toward ies defend-

ant as a good and dutiful wife but notwithstanding the

conduct of the plaintiff toward the defendant the defend-

ant has been guilty of excesses, cruel treatment and out-

- fages toward the plaintiff in that defendant lias’ been |

guilty of extteme physical violence toward plaintiff and

has threatened to kill the — if ‘she — Mr.

73

". Gieslér as her attorney; that defendant has been habit-

ually intemperate and the situation: can no longer. be

tolerated by the plaintiff and the same.has been, and now -

_is, detrimental to her physical and mental health and

well-being, . ’ ee cd, oe

“That because of these threats plaintiff fears that de-

fendant will do her great bodily -harm if he is not re-

strained from: in any way annoying, ‘molesting, harming,

or coming about the plaintiff's residence, or wherever she

may be found; and -plaintiff further represents and: shows

unto the Court that the giving and notice of application

for such temporary. restraining order will permit defend-'

ant to perform the very acts by him threatened to be

committed upon plaintiff and hereby sought to be pre-

vented.”, . , ae he :

the defendant praying in said suit that she have a decree from said

Court granting her the right to live separate and apart ‘from the

plaintiff herein, that she be granted the care, custody and control ©

of the minor. children of the parties, and that the plaintiff herein

_ be required to pay support money and attorneys’ fees, and. furthe#

- requiring that’ the Court issue its ‘temporary restraining order;

- that thereafter such proceedings were had in. said Court and

Cause, that plaintiff herein was duly and regularly served with’

Process according to the laws of the State of Arizona, as defendant

therein, and on the 14th day of May, 1959, upon-a hearing duly

and legally had in Open court a judgment and decree was duly

given and rendered in said Court and cause in favor of ‘the de-

' . fendant herein and against the plaintiff herein, authorizing the

defendant herein to live separate and apart from the plaintiff

herein, requiring the plaintiff herein to pay for the support of the

minor children of the parties and the defendant herein, the sum

of $3,000.00 per month, commencing on the 15th day of May, ©

1959, and a like sum on the 15th day of each and every month

thereafter; that.defendant herein have the care, custody and con-

trol and education of the minor children -of the parties hereto

-

then within the jurisdiction of the Court, to wh, Sandra Jean

Porter, William Arnold Porter, Jf, and Tom ‘Clark: Porter; that

. defendant herein have.a lien on all of the community property

of the parties for support under a pendente lite order in the sum.

of $10,200.00, together with attorneys’ fees in the sum of

$5,000.00 and court costs pendente lite; that the community

interest of. the parties hereto and therein in the Arizona Hotel,

the legal description of the same beigg more particularly described

in said decreé, be charged with payment for the support of the

defendant herein, and that said.lien was to affix to any community .

" interest in said: Arizona Hotel; that defendant herein receive the

sum of $10,000.00 as and for attorneys’ fees, together with her

costs laid Out and expended; that a copy of said decree of separate

maintenance in said Court and cause, duly certified by Walter S.

. Wilson, Clerk, and Henry S.. Stevens, Judge of the Superior

Court of Maricopa County; State of Arizona, is. attached hereto~

marked Exhibit “A” and hereby made a part hereof as —

~ set forth in full.

WHEREFORE, defendant prays that plaintiff ; take nothing by

~~ his complaint, and that she be hencé dismissed With her costs.

COUNTERCLAIM

FIRST COUNT. | 7

The defendant herein, Gladys Porter, as and for a counter-

“claim against W. A. Porter, the plaintiff herein, alleges as follows:

That defendant is a resident of Maricopa County, State of Ari-

zona, and plaintiff is a resident of asp -_ Kgotenai County,

-State‘of Idaho; |

. Ts ; P

That the parties hereto were married on or about the Ist day,’

of June, 1940, at Detroit, Michigan, and now are and at all times

since said'date have been husband and wife; .

ae Ill. ek ae ae

That there have been born as issue of the maffiage of the

- ie

parties hereto four childten, namely Sandra Jean Porter, age 16 -

years, William’ Arnold Porter, ‘Jes age 15 years, RichardsPorter, -

age 13 years, and Tom Clark Porter, age 3 years; that said -

children are all within the jurisdiction in Phoenix, Arizona, more .

patticularly/ described as Lots 1, 3 and 5 in Block 74, Original

_ Townsite of Phoenix; Arizona, according to the map of record

- ‘sin. the office of the County Recorder, Maricopa County, Arizona;

children are all within the jurisdiction of this Court, save and -

except the child, Sandra Jean Porter; that the defendant is a

woman of refinement, a good mother and a.fit and proper person

to have the Care, Custody and control of the children of the Parties

hereto; os as i al

tu :. le

That the parties hereto.have acquired as community property

ownership or leasehold rights in and to: approximately eight

hotels located in the western States; that the Parties hereto own

a farm or ranch at Bonners Ferry, Idaho, of approximately 2,500

acres, a home at Hayden Lake, Idaho, valued in excess of .$125,-

000.00; that ‘defendant believes and therefore alleges that she

has a community interest in -certain other ‘properties controlled

by plaintiff, including, but not limited to, stocks, bonds, bank

accounts and real property, the whereabouts and description of .

‘ which are at this time unkown to defendant; that the parties

hereto. own as community property an interest in the Arizona

Hotel located at the corner of Third Avenue and Washington

' Street in Phoenix Arizona, more particularly described as Lots -

1, 3 and 5 in: Block 74, Original Townsite of Phoenix, Arizona,

according to the map of record in the office of the County. Re-

corder, Maricopa County, Arizona; |

Vv. ‘

That defendant is without funds with which to support herself

and the minor children of the Parties hereto who’are within the

jurisdiction of this Court or with which tO pay court costs or -’

attorneys’ fees, so that she may properly defend herself and -

;

+, )-™

counterclaim as to her legal.and equitable intersts in this action,

ace a ix.

VI. 5

~ Fhat ducg the marriage of the parties hereto the defendant |

“has conducted herself as a good and dutiful wife, but the plaintiff

has disregarded his’ marriag@nvows and obligations, and, without

just. cause or provocation, has-been guilty of extreme cruelty by

wilfully and. knowingly inflicting ¢ Upori_ the defendant grievous

mental and physical suffering, more particularly as follows, to wit:

In that‘from time to time, and particularly during the .

last few. months the parties were living together as. hus-

band and wife, the plaintiff has been guilty of excesses,

_ cruel tredtment and outrages toward the defendant, has

exhibited extreme * physical violence tdward. defendant,

_ has threatened to kill her if she employed ‘Mr. Giesler as

her attorney; has been habitually ifitemperate, has beaten

defendant and made other threats and overtures ‘toward

taking her life, all without just provocation, ‘

which said acts, together with other acts not herein specifically

alleged, caused the defendant to leave the Idaho residence of ‘the

parties hereto in December, 1958, in fear for her life and in fear

~ of molestation by plaintiff and in fear for‘ the safety and welfare

of the daughter of the parties hereto, Sandra Jean-Porter, and

the three-year-old son of thie parties-hereto, viz. Tom Clark Porter; _

That on or about the 30th’ day of May, 1959, plaintiff, \

together with two hired strong-armed men, broke into the -

-residence of. the defendant in. Photnix, Arizona, one of |

the men grabbed and held, against her will, the daughter *

of the parties hereto, viz. Sandra ‘Jean Porter, ae other

grabbed and held defendant while the plaintiff grabbed

the minor son of the parties hereto, to wit, Tom Clark

‘Porter; age 3 years; and by such: force*and violence and -

against the will of the defendant and contrary to the © -

_ otder of the Superior Court of the’ State. of -Arizona,’*in ©

‘ and for the County of Maricopa, and against the peace

°

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and dignity of and ee to the laws of the State of

Arizona, plaintiff removed and transferred said ‘minor

child, Tom Clark Porter, from the home of the defendant _

and infermed the defeadant that she would not See the

child agaiit

-

which said acts on the part ‘of the plaintiff were’ calculated to

and did cause defendant grievous mental pain and angnish, com-

pletely destroying the legitimate objects of matrimony, convincing

the defendant that the continuation of the marriage relationship

between defendant and plaintiff is useless and futile and can serve

only to make defendant unhappy and ill and that plaintiff is an

unfit.and improper person to have the care, custody and control

of the minor children of the parties heréto, and defendant alleges

that it is for the best interests Of all of the minor children of the

parties hereto that their care, custody and conrol be awarded to:

_ the defendant herein.

‘VIL. ;

‘That. ‘dattiadcen has employed attorneys herein, to wit, Jerry

. Giesler of Beverly Hills, California, ‘Wilson & Wilson of Phoenix, -

Arizona, and Givens, O'Leary, Doane & Givens, of Boise, Idaho;

that it is necessary for the defendant’S S protection of her interests

in this action that all of such attorneys be employed. and that

plaintiff should be,required to pay to defendant for attorneys’

. fees incurred and to be incurred in this: action the sum of $25,-

000.00; that defendant has been accustomed for the upkeep and

maintenance of the household of the parties hereto, and for her

support ‘and the.support of the minor children, the sum of

$3,000.00 per month, and «hat said sum.is a reasonable sum to

be awarded to defendant in this action for her support and Support -

of the minor children of the parties hereto; that it is anticipated

that this action will be lengthy and complicated, requiring con-

siderable expense to defendant to defend herself and: protect her

intrests. in this action, for transportation, costs of depositions,

filing costs, transcript fees. and other matters, and that the sum

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} 4 da a

of $2,500.00 should be sian to, her as suit money pendente

lite i in this action, ahd upon final hearing an d for her actual

costs and experises should be made; that defendant alleges that

upon hearing ‘of this case on its. merits the Court should make

a proper and equitable decree awarding to defendant as her sole

and separate property not léss than one-half of the community

property of the parties hereto; thfat ap order ‘to show cause should’

issue requiring the plaintiff to appear on a day certain and show

cause, if any he has, why he should not be required | to pay to

defendant, as and ‘for her support and the support of “the minor

children pendente lite, the’ sum of $3,000.00 per month; why

that certain order of the -above-enititled Court dated May 27,

1959, regarding the care, custody, control, maintenance, support

~ ahd education of the children of the parties hereto, should not be:

set aside and held for naught; why plaintiff should not be re-

quired to pay to the defendant forthwith the sum of $2,500.00

suit money for the defense and prosecution of this action’in her

behalf and the sum of $15,000.00 attorneys’ fees, pendente lieg. .

| SECOND COUNT

As and for a second count to this counterclaim against W. A.

Porter, defendant alleges:

I. 5

Defendant re-alleges paragraphs I through V of her First —

to this coumerciaim : as though set forth mene i in haec verha.

II.

That at all ‘times hereinafter mentioned, the Superior Court

of the State of Arizona, in and for the County of Maricopa, was ©

a court of general. jurisdiction over all matters in equity and law,

duly created and organized under and by virtue of. the laws of

the State of Arizona;

HL.

That on or about the 13th day of February, 1959, the defend-

ant herein commenced an action for separate maintenance in

s

-

9

_- sum of $3,000.00 each and every month thereafter until further -

-. otder of the Court; defendant herein was awarded the care, cus-

v ° . ‘ :

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} boat

~"\said coure against plaintiff herein; that at said time and place

. defendant had established a separate domicile in the State of

e-

Arizona; ‘that plaintiff herein was duly and regularly served with

process in accordance with the laws of the State of Arizona as

defendant therein, and on the 14th day of May, 1959, upon a. |

hearing duly and legally had’in open court, a judgment and decree

was ‘duly given, and rendeted in favor of defendant herein and

against plaintiff herein whereby defendant was authorized to live

separate and apart from plaintiff; plaintiff was ‘required to, pay

to the defendant for her support and the support and maintenance’

of the minor children: of the parties, the sum of $3,000.00. per

month cgmmencing onthe 15th day of May, 1959, and a like

tody, control and education of the minor children of the parties

then within’ the’ jurisdiction of the Court, to wit: Sandra Jean

. Porter, William Arnold Porter, Jr., and Tom Clark Porter; de-

: "$5,000.00, and court costs pendente lite and defendant was to

fendant was given a lien ‘on all’ the community property of the

parties hereto for her support under a pendente lite order in: the

sum-of $10,200.00, together with attorneys’ fees in the sum of

receive. from te plaintiff the sum of $10,000.00 as attorneys’

fees, together with costs therein laid-out and expended;. _ y?

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That no part of the monies required by the aforesaid decree

have been paid to the defendant; a ee

: ; PM ° ty

V. a ;

That a- copy of said Decree of Separate Maintenance ‘in ‘said

court anc: cause duly certified by Walter S. Wilson,. Clerk, and

Henry S. Stevens, Judge of the Superior Court of Maricopa

County, State of Arizona, is attached hereto marked Exhibit “A”

and made a part hereof as though set forth herein in full;

' VI. ;

That with respect to all matters adjudged in said decree and

AN NS

over which said-court: had jurisdiction, said decree is entitled to

be given full faith and ¢redit by the courts of the State of Idaho -

and should be established as a fofeign | judgment by: this Court

and enforced by this Court in. the manher provided by. law.

WHEREFORE, defendant aid’ counterclaimant prays judg-

rent against plaintiff and counterdefendant as follows:

FIRST COUNT

lh _ That the bonds of matrimony heretofore and now existing

between plaintiff and defendant be dissolved and the defendant

be granted a divorce from the plaintiff on theground of extreme

cruelty, and that ‘each. of the parties hereto be restored to the

status of single persons; -

2. That defendant be shard the care, custody and control '

of the minor children of ‘the parties hereto, namely, Sandra Jean

Porter, William Arnold Porter, Jt, Richard Porter, -and Tom |

| _ Clark Porter;

3. That plaintiff be required to pm * defeodiane the sum of

~ $3,000.00 per month. for the Support, maintenance and education

of the minor children of the parties hereto and for the support

and maintenance of defendant until further order of the Court;

4, That‘upon final hearing of the above-entitled matter, plain-

tiff be required to pay to defendant ‘the sum of $2,500.00 suit

money in this action together with such— additional sums that .

may have been actually expended by defendant by way of suit

money, and the sum of $25,000.00 for attorneys’ fees;

- 5. That defendant be awarded not less than one-half of the

communijty property of the parties hereto: ‘mn the jurisdiction

- of this Court; :

- SECOND COUNT

6. That that certain decree of separate. maintenance attached

hereto as Exhibit ‘ ‘A” be given full faith and credit by. this Court .

~~ with respect to all matters therein contained and over ‘which the

‘Superior Court of the State of Arizona, in and for the County ©

| of Maricopa, had jurisdiction and that the plaintiff be required

to pay, pursuant to said decree, the sum of $3, 000.0 00 per ein |

- «for the months of May, June and July," 1959, and for each and

| ~ every month thereafter, together with the sum of $10,200.00 past’

pport monies due defendant under pendente lite order, and —

“£ 000.00 as and for. attorneys’ fees incurred by defendatt in

said action, together with interest thereon i in the surn of 6% per

annum from May 15,1959; and: ¢

€ 7. For such othet and further relief as to ~~ Court seems

just and proper in aces premises.

, . ‘DATED this 10th day of jy, 1 1959.

x : ‘JERRY GIESLER

9200 Wilshire Boulevard

Beverly Hills, California

_ WILSON & WILSON.

~ 522 Luhrs Building

Phoenix, Arizona

GIVENS, O'LEARY, DOANE & GIVENS

/s/David Doane *

Member: of the Firm

¢ * Residence & Post Office

Address: 1530 Idaho Siem

_ Boise, Idaho

cent e

a ATTORNEYS FOR DEFENDANT *

( Certificate of Mailing by David Doane.) .

; (Attached to thé foregoing

Exhibit were the following: )

Decree of Separate Maintenance,

Cause No. 55179, Miericape County, _

| Arizona, Superior Court.

____ — See Page 31, Volume I of the )

Abstract of Record. | 2

| Certificate of Walter S. Wilson dated -

, June 19, 1959. 3 a a

C ertificate of Henry S. Seven ated

“June 19, _—

Y 4 . . . “ - o-

ey ee ee rene * ‘ pe ere nt 2) VON ee oa ee Cre | SCE nr TT ee ene Seis

as 2,

Certificate of Walter S: Wilson, dated.

- June 19, 1959. ©

"Clerk's C ettificate of Attestation;

by E. W. Larson, dated:December 15, 1961.

Certificate of District Judge, Clay V.

| Spear, dated December 15,1961. Serie, we

Certificate of Clerk, E. Son,

dated December 15, 1961. .

tes a ee ee ‘, ;

- .PEARLINE PORTER AND PAULINE PORTER LEONARD,

; PLAINTIFFS IN INTERVENTION :

_ EXHIBIT NO. 14 eee

’ (Marked For ‘Identification) ~~ 2G

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83 |

7. FINDINGS OF FACT AND CONCLUSIONS OF LAW. °

OF JHE IDAHO DIVORCE COURT ”,

(A.R., pp: 300-22.) L

—_—_— <->

_ + *PLAINTIFF-INTERVENORS EXHIBIT-NO. 2

_-IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL

_ DISTRICT OF THE STATE OF IDAHO, IN AND FOR __

THE COUNTY OF KOOTENAI

‘W.-A- PORTER, Plaintif,\ NO. 18556-A_

"ys ss, J BINDINGS OF FACT

: , ee ee, AND CONCLUSIONS

Ane oe : . Defendant, OF LAW ’

; an

STATE OF IDAHO )

County of Kootenai ) ss. -

Filed JAN. 3, 1961

-PEARLINE PORTER and

PAULINE PORTER. LEONARD,

* * Plaintiffs in Intervention,

at o'clock ——- M

; ecg E. W. LARSON

W. A. PORTER and 3 Clerk District Court

GLADYS PORTER, | By Harold E. Plum

.. Defendants-in Intervention. Deputy

. The above-entitled case having come on regularly for hearing

upon the complaint of the plaintiff; and answer and counterclaim

- of defendant, and of the intervenors and answer thereto; the plain-'

‘tiff appearing in person and by. and through his attorney, E. L. -

MILLER, of .Coeur d’Alene, Idaho, the ‘defendant appearing in.

_ person and with her- attorneys, D

This text is long and has been trimmed here. Open the source document for the complete record.