This appeal comes to us from the Circuit Court of Jefferson County, in Equity. The appellant-complainant seeks a review of the trial court's ruling on demurrer to her bill of complaint.
The original bill of complaint was in some respects a bill of review and in other respects was an original bill in the nature of a bill of review.
In the bill of complaint, the appellant-wife alleged that she was a resident of the State of New York, and that the appellee-husband was also a resident of New York. A final decree of divorce was granted the parties on 3 November 1949 by the Circuit Court of Jefferson County. A copy of this decree of divorce was made a part of the present bill of
The wife now complains that she was not represented by counsel in such proceedings and did not at any time live or reside within the State of Alabama prior to the rendition of the first decree. The present bill also alleges that immediately after the rendition of the decree of divorce that the husband immediately returned to the State of New York and has since resided there continuously.
The appellant's present prayer prays that the decree of divorce between the parties be set aside and that the operation of the decree of divorce be suspended pending a final hearing, and that the appellant be awarded additional reasonable solicitor's fees, and for general relief.
A property agreement was originally executed in the City of New York on 26 October 1949. This agreement provided, among other things, for the husband to pay the wife $20,000 as a lump sum settlement, $2,500 of which was paid upon the signing of the agreement, and a receipt of which was acknowledged. Solicitor's fees in the amount of $2,000 were also agreed to by the husband. This property settlement was an exhibit to the first bill of complaint and was made a part of the decree of divorce.
The wife then amended her present bill of complaint by adding paragraph 11, which charged that on the 25th of October 1949, the husband represented to the appellant that he had moved his residence to the State of Alabama and filed a bill for divorcement, and that the Alabama courts had exclusive jurisdiction over the parties to render a final decree of divorce. The appellant now charges that in reliance on her husband's representation, she was induced to make answer to the bill of complaint admitting the residence of the husband and submitting herself to the jurisdiction of the Alabama courts and was thereby prevented from presenting all of her defenses and, in addition, was induced to discontinue an action which was then pending between the parties before the courts of New York. This action directed the payment of certain sums of money by the husband to the wife for her support and maintenance. The present bill alleges that these facts were untrue and that she had a good and valid defense to the
By subsequent amendment—paragraph 12—the allegations were restated that the appellant and appellee were both bona fide residents of New York City at the time of their marriage. That the appellant filed an action for support and maintenance against the appellee in the courts of New York on 3 March 1948, and that on 4 March 1948, the appellee was ordered to pay the appellant $75 per week pendente lite and that this action was pending and continuing during negotiations with her husband for a lump sum settlement. She then restated the allegations of misrepresentation contained in paragraph 11, and adds that her husband represented to her that it was necessary that the property settlement by which she obtained the first $20,000 be approved by the courts of Alabama. And, that she had submitted herself to the jurisdiction of Alabama for the sole and express purpose of having the property settlement which she had obtained in New York confirmed by the Alabama courts.
Demurrers were addressed to the bill as a whole and to each aspect thereof. The trial court sustained the appellee-husband's demurrers to the present bill on 7 August 1953. It is from this decree on demurrer that appellant perfected her appeal to this court.
The wife having enjoyed the fruits of the original decree, now seeks to declare it void. This she is estopped to do. As was said in Freeman on Judgments, 5th Edition, Volume 3, 1925, Section 1438:
As further grounds for denying relief, we have the equitable maxims that "those who seek equity must do equity", and "one that comes into equity must come with clean hands". By the terms of the agreement between the parties, which was made a part of and merged with the decree of divorce, the appellant received from the appellee a very heavy and substantial sum of money. Appellant-wife now seeks to have set aside and rendered for naught the decree of divorce whereby she obtained $20,000 from her husband. Yet, she nowhere alleges in her bill of complaint that she tendered to her husband any portion of the sum which she received under the property settlement incorporated in the first decree, nor has she paid any portion of such money into court, nor has she made any offer to do so. The appellant's retention of the total monetary benefits of the divorce decree, while seeking to have
With reference to the fraudulent representation which the appellant contends that her husband perpetrated upon her and she now seeks to challenge by bill in the nature of a bill of review, attention is directed to the principle enunciated in the case of Spencer v. Spencer, 254 Ala. 22, 47 So.2d 252, 256, and unwaveringly supported by numerous Alabama cases:
Diligence is incompatible with blind reliance on an adversary's representation as to material facts, at least in the circumstances here discussed. We are irresistibly drawn to the conclusion from the absence of contrary allegations in complainant's complaint, that if, in fact, the averments of the appellee's original bill were false, that the appellant knew of their falsity immediately and in time to interpose such defense as she might elect; at least, before the trial court had lost jurisdiction of the cause. We conclude, in this further respect, that the appellant's bill was lacking in essential allegations and demurrer thereto was properly sustained.
We simply hold that this complainant because of her conduct, as reflected by the bill of complaint, has closed the doors of the equity court to herself and we in no way impinge on our well-settled rule that the Alabama courts have no jurisdiction over the marital status of the parties if neither was domiciled in Alabama. Wilkes v. Wilkes, 245 Ala. 54, 16 So.2d 15; Gee v. Gee, 252 Ala. 103, 39 So.2d 406. Such jurisdiction could not be conferred on the court even with the parties' consent. Jennings v. Jennings, 251 Ala. 73, 36 So.2d 236, 3 A.L.R.2d 662.
Rachel Levine having plucked the goose in 1949, seeks to get her fingers into a new crop of feathers in 1953.
LAWSON, SIMPSON and STAKELY, JJ., concur.
MERRILL, J., concurs in the result.
LIVINGSTON, C. J., dissents.
GOODWYN, J., not sitting.