Allen v. Allen , 52 N.M. 174 ( 1948 )

I agree with the majority that the testimony of the plaintiff is not of the clear and convincing type that should be required in these divorce cases filed by soldiers sent here from other states. As Judge of the Fifth District during the war period, I had three army camps in the district and required a soldier plaintiff, who had been sent into the state in military service, to make a strong showing on residence before granting a divorce. It may be that little more than a pro forma showing was required in Otero county and that by reason thereof the plaintiff may not have offered all proof on the point which he might have had available, and that on another trial he might be able to make a stronger showing. On the other hand, as I view the record, the defendant was not given a fair opportunity to procure and present her evidence in support of her claim that the plaintiff had not been a bona fide resident of New Mexico for one year next preceding the filing of the complaint.

Here are the material parts of the record proper:

1948 —

March 24 — Complaint filed.

April 21 — Special appearance entered for the purpose of questioning the jurisdiction of the court.

April 23 — Motion to dismiss filed by the defendant on the ground the plaintiff was a non resident of New Mexico, and therefore the court did not have jurisdiction of the cause.

April 23 — Notice of pendency of suit with appearance day set for June 7, 1947. Affidavit of mailing filed this date.

May 13 — Notice by plaintiff of hearing on motion to dismiss for May 17, 1947.

May 16 — Motion filed by defendant's attorney for time to take depositions in Illinois to support the allegations of her motion that the plaintiff was in fact a resident of that state, and not a resident of New Mexico.

May 16 — Affidavit and proof of publication.

May 17 — Order continuing hearing on motion to dismiss until May 24, 1947.

1947 —

June 14 — The defendant filed a motion asking for $400.00 to cover her expenses of preparing her defense and of attending the hearing upon her motion to dismiss, and also for traveling expenses of her Chicago attorney, and for a reasonable sum as attorneys' fees. The motion recited that she was a resident of Chicago, had two children whose interests it was necessary to protect, etc.

June 14 — Defendant entered her general appearance in the case.

June 20 — Order dated June 19, 1947, denying motion to dismiss and giving the defendant until June 21, 1947, in which to answer, although she had asked for additional time.

June 23 — Notice of final hearing filed by plaintiff for June 30, 1947.

June 30 — Motion by defendant for an order granting her further time within which to take depositions of non resident witnesses, stating that such time was necessary to enable her to get in touch with her witnesses and arrange for the taking of their testimony.

June 30 — Order entered on motion of the defendant for suit money, expenses and attorney's fees, allowing $29.60 for expenses and $100.00 as attorney's fees, and it is recited that this was at the rate of 5 cents per mile from the state line (New Mexico-Texas near Tucumcari) and return, plus the sum of $100.00 as attorney's fees. (The defendant and her attorney had made the trip from Chicago to Alamogordo and return.)

June 30 — Order entered denying an appeal from the order refusing to dismiss the case.

June 30 — Final decree of divorce and order denying a continuance.

Following the submission of the motion to dismiss on June 14, the defendant and her Illinois attorney returned to Chicago. No action had then been taken on her motion for expenses, suit money and attorneys' fees, and I feel she and her counsel had the right to assume that in the event the motion to dismiss was denied she would be granted a reasonable time in which to take the depositions of her Illinois witnesses, and also that she would be granted a reasonable sum to cover expenses.

Instead of following this course the trial judge, by order dated June 19, 1947, gave her two days in which to answer and then put the case to trial on June 30, 1947, when she was in Chicago and without her having had time to take and return her depositions.

The matters shown by the record do not square with my ideas of administering justice. It should be remembered that a divorce action is really a triangular proceeding, to which the husband, the wife, and the state are parties. The state is not allowed to intervene and become an actual party as in such cases the court represents the state's interests. In these cases the courts are more ready than in other proceedings to grant continuances. See 17 Am.Jur. Sec. 13, Divorce and Separation, p. 155. Also it should be remembered that the welfare of two babies was involved in this case.

It is true that on June 30 her then local attorney (not the one appearing in this court) picked up his papers and went hence instanter following the allowance of the paltry sum allowed for expenses and the denial of his motions for an appeal and a continuance, but what could he do without a client, depositions or witnesses? It is true that sufficient time had been given for his client to return from Chicago to Alamogordo, if she was able to finance the trip, but she had lost one testifying bout with the plaintiff on the residence question when she went into the June 14 hearing without corroborating witnesses or depositions, and as she had not been allowed either the money or time to take her depositions why should she come back and undertake what must have reasonably appeared to be a hopeless task? Her attorney might have stayed in the court room and have made a record that would have later been of some help, but it is more likely that opposing counsel would have only nailed his case tighter.

As above indicated, I would remand the case for a new trial, but with directions to grant the defendant sufficient time and suit money to obtain her depositions and attend the trial, together with a substantial increase in the attorneys' fees. However, as I am unable to obtain the concurrence of two of the other members of the court and thus dispose of the case, I will concur in the result announced in the majority opinion.