
    Bobala, Appellee, v. Bobala, Appellant.
    (No. 2704
    Decided December 3, 1940.)
    
      Messrs. Lewis, Levin <& Cronin, for appellee.
    
      Mr. James Modarelli, for appellant.
   Carter, J.

The action below, instituted on the second day of November 1939, was one wherein plaintiff, appellee, sought a divorce from defendant, appellant, custody of a minor child, support for, herself and her minor child, and also reasonable counsel fees.

It becomes necessary to set out quite fully the issues raised by the pleadings. Appellee alleges in her petition that she is and has been a tona fide resident of the state of Ohio, has been such for moré than one year last past, and has been an actual resident of Mahoning county for more than thirty days immediately preceding the filing of her petition; that on September 8,1933, she was married to appellant in the city of Mercer, Pennsylvania; that at the time of securing their marriage license in the state of Pennsylvania, appellant gave his name as Joseph Jenson and the appellee gave her name as Mary Martin, but that her correct name was Mary Markovich; that she and the defendant were married under these fictitious names; and that one child has been born, now seven years of age. She further alleges that defendant has been guilty of gross neglect of duty since the date of their marriage in that he has failed, neglected and refused to provide a home for her and their minor child, neglected and refused to live with her and has neglected and refused to conduct himself towards her as a husband and has at all times since their marriage acted in the same manner as if he were not married to her; that he has been guilty of extreme cruelty to her in that he has neglected and refused to cohabit with her and has openly and notoriously kept company with other women; and that his conduct has caused her much humiliation, embarrassment and mental anguish.

She therefore prays that she may be granted a divorce and awarded custody of the child, and that appellant be ordered to pay to her a reasonable amount for the support of herself and their minor child, together with reasonable' counsel fees.

By way of answer appellant alleges that the facts stated and allegations and averments contained in the petition do not constitute a cause of action against him; that all of the allegations set out in appellee’s petition were determined by a competent court outside of the state of Ohio; that no new matter is alleged in the petition, and the same is res judicata; and that this appellee has no right to maintain the action. He further alleges that by a court of competent jurisdiction in the district of Bravos, state of Chihuahua, Republic of Mexico, on or about the eighth day of November 1938, appellant filed the necessary papers for a divorce against appellee, alleging, as grounds the incompatability of characters and the separation from the conjugal home for more than a year, and that the marriage was contracted on the fifteenth day of September 1933, at Mercer county, Pennsylvania: that appellee was served with process through the sheriff: of Mahoning county, Ohio, and interposed an answer to the allegations; that various and sundry papers were filed; that a hearing was had in that cause, resulting in a finding in favor of appellant, which finding is evidenced by an entry certified by that court and by the various consular agents; and that the court found among other things as follows:

“It is therefore ordered with all its legal consequences that the marriage existing between Louis L. Bobala as having been entered into on the eighth day of September 1933, at Mercer, state of Pennsylvania, United States of America, be dissolved, leaving both parties free to contract a new marriage.”

Appellant further alleges that thereafter an appeal was prosecuted by appellee, Mary Bobala, to the Superior Court of Justice, first civil department, and in that court a decree was entered in favor of appellant, Louis Bobala; that by reason of that fact, since appellee invoked the jurisdiction of the civil courts of Mexico and prosecuted from the trial court an appeal to the Superior Court, the court in Mexico acquired jurisdiction of the action and of the person; that the same should be recognized and full faith given to the decree of that court by the courts of Ohio, due to the full faith and credit clause of the Constitution of the United States; that the judgment, order and decree of Mexico be given full faith and credit in this state; and that appellee’s petition be dismissed.

To this answer a reply was filed by appellee in which she specifically denies that the allegations contained in her petition were determined by a competent court outside of the state of Ohio, and denies that the matter contained in her petition is res judicata, or that she has no right to maintain this action. She admits that appellant filed an action in which he sought to obtain a divorce from appellee in the courts of the Republic of Mexico, and that she was served with process through the sheriff of Mahoning county, Ohio, and filed or caused to be filed an answer in that proceeding. She also admits that a hearing was had and a finding made in favor of appellant, that the court of the Republic of Mexico made an entry purporting to dissolve the marriage contract existing between them, that an appeal was taken by her from the finding of the trial court, and that the result of the appeal was a decree favorable to appellant. Further replying appellee alleges that the defendant went to the Republic of Mexico for the sole purpose of instituting his action for divorce; that the defendant never at any time maintained a bona fide residence in the Republic of Mexico; that when appellant went to Mexico he did so for the sole purpose of instituting his divorce proceedings and without any intention of establishing a bona fide residence in Mexico, or of remaining in Mexico any longer than might be necessary to institute his divorce proceedings; that as a result the courts of Mexico never had any jurisdiction of the subject of the divorce action instituted by appellant; that any purported entries or attempts to dissolve the marriage contract existing between appellee and appellant by the courts of Mexico were void and of no effect; that by reason of that fact the entry and decree of the courts of Mexico are not entitled to faith or credit by the courts of the state of Ohio; that no acts or conduct of the parties could clothe the courts of Mexico with jurisdiction of the subject of the action; and that the decrees of the courts of Mexico, having been entered without first having obtained jurisdiction of the subject of the action, are null and void and do not constitute an adjudication of the rights of the parties.

First, it will be observed that the sole defense set up by appellant in his answer deals exclusively with the divorce proceedings had in the Republic of Mexico. We might further suggest that the record discloses that appellee was not present at any time during the hearing of the case in the Mexican courts, and further that she never has been within the Republic of Mexico. However, the record discloses that notice was personally served upon her by the sheriff of Mahoning county of the action taken in the Mexican courts by appellant, and that she did file an answer and prosecuted an appeal through her counsel.

The issues thus joined the cause came on for trial, and the court made the following finding:

“Plaintiff, at the time of filing her petition, had been a resident of the state of Ohio for one year next preceding the same and was, at the time a bona fide resident of the county of Mahoning, and that' the parties hereto were married as in said petition set forth.

“That the alleged defense set up in defendant’s answer, to the effect that he had obtained a divorce from this plaintiff in the civil courts of the district of Bravos, state of Chihuahua, Republic of Mexico, is untenable, without merit and not well taken in that this court holds that at the time the said defendant Louis Bobala filed his action for divorce in the district of Bravos, state of Chihuahua, Republic of Mexico, there was pending before this court a divorce action instituted by said Louis Bobala; that he was not a bona fide resident of said district, state and Republic, and that in prosecuting said action and obtaining a purported decree of divorce from this plaintiff Mary Bobala, the said defendant Louis Bobala, perpetrated a fraud upon this plaintiff and upon this court. That at the time the said defendant Louis Bobala obtained said purported decree of divorce he was under a temporary restraining order from this court, enjoining him from prosecuting said action for divorce in said district, state and Republic.

“That the civil courts of the district of Bravos, state of Chihuahua and Republic of Mexico had no jurisdiction of the subject of the action in the first instance and that this plaintiff could not, by any action which she toot, invest said court with such jurisdiction.

“That the courts of the Republic of Mexico through the comity of nations clause of the Constitution of the United States had no appellate jurisdiction over, the decisions of this court, and this court refuses to recognize the validity of said purported Mexican divorce and holds that the same is contrary to law and of no binding force or effect. ’ ’

The court further found that appellant had been guilty of extreme cruelty, and, by reason thereof, appellee was entitled to a divorce as prayed for; that the marriage contract heretofore existing between the parties should be and the same was dissolved and both parties were released from the obligations of same; and that the care, custody, education and control of the minor child should be, until further order, confided to appellee exclusively. The court enjoined appellant from interfering in any manner with such custody, giving appellant the right of visiting the minor child at reasonable hours. The court ordered that the appellant pay to appellee for the support and maintenance of the child the sum of $25 per month until further order; and that appellant pay to Lewis, Levin & Cronin, counsel for appellee, as attorney’s fees the sum of $500. The court barred dower.

A motion for new trial was filed and overruled, and this appeal on questions of law was prosecuted to this court.

The record discloses substantially the following: That appellee and appellant were married on September 8, 1933, at Mercer, Pennsylvania; that a child was born, which was seven years of age in August 1940; that the parties have never lived together in their own home; that appellee has resided with her mother; that appellee has lived in Mahoning county all of her life, and is now twenty-six years of age; and that appellant never supported her or the child. Howéver, there is evidence in the record of certain agreements entered into between the parties in the way of separation and support in the years 1933 to 1936.

The record further discloses that on the twentieth day of January 1937, appellant instituted in the Court of Common Pleas of Mahoning county his action for divorce from appellee. This cause came on for hearing before the court resulting eventually in a dismissal of the action by the court, the date of dismissal being January 16, 1939, the hearing thereon having been in the fall of 1938. That action was known as case No. 98495, Common Pleas Court, Mahoning county. On or about the eighth day of November 1938, and prior to disposition of appellant’s action for divorce filed in Mahoning county, appellant instituted his action for divorce in the civil court, Bravos, state of Chihuahua, Republic of Mexico.

During the pendency of the divorce proceeding in Mexico, appellant having returned to Mahoning county, appellee instituted an action in the Common Pleas Court of Mahoning county, Ohio, known as case No. 104388, on the docket of that court, wherein she sought ■ an injunction restraining appellant from further prosecuting his suit in Mexico or in any other jurisdiction where defendant had not established an actual bona fide residence. Service was had on appellant in Ma-honing county and a restraining order was allowed.

Subsequently, on or about March 4, 1939, a divorce was granted appellant by the Mexican courts, leaving both parties free to contract a new marriage and in no way interfering with the custody of the child, such being with the mother at the time. Appellee through her attorneys prosecuted appeal, wherein the decree was affirmed.

On November 2, 1939, appellee instituted this action in Mahoning county, Ohio, seeking divorce, custody of the child, and support and maintenance. This action was known on the docket of that court as case No. 106564. Service was had on appellant in Mahoning county, and, on hearing, the court made the finding as hereinbefore indicated in this opinion.

Is the defense set up by appellant conclusive of the rights of these parties? In other words, was the decree rendered in Mexico res judicata and conclusive between these parties so that no further action is available to appellee as herein prosecuted? The lower court answered in the negative. Was the court right in its conclusion? First, it is to be borne in mind that this is not an action to declare the divorce granted appellant in Mexico void by reason of any claimed fraud perpetrated upon that court. Resort would have to be had to that court for a determination of that issue if raised. This action is one for divorce, support, and custody of the minor child based largely on the theory that appellant never acquired a bona fide residence in Mexico, and if that be true then and in that event no jurisdiction attached to that court to grant a decree, and if that be true appellee has not been divorced as the decree would be void ab initio (23 Ohio Jurisprudence, 791, 794, Sections 471, 477; 32 Ohio Jurisprudence, 260, Section 48) even though the parties appeared in the Mexican court and consented to that court exercising jurisdiction, for it is a universal rule of law that parties cannot by consent give a court jurisdiction of subject-matter of which it would otherwise not have jurisdiction. Jurisdiction cannot be obtained by consent of the parties, waiver or estoppel. Jurisdiction is prescribed by law and cannot be increased or diminished by the consent of the parties, and where there is want of jurisdiction of the subject-matter a judgment is void, and consent of parties can never impart to such judgment the vitality which a valid judgment derives from the sovereign state. It cannot be doubted that if the Mexican court, because of the nonresidence of appellant, had no jurisdiction, the decree could in no case effect the marriage status of these parties in Ohio.

There is a doctrine known and established as that of comity. This has been defined as courtesy, complacence, respect, a willingness to grant a privilege, not as a matter of right but out of deference and good will. Comity of nations is an appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another, and is derived altogether from the voluntary consent of the latter. Such is not admissible when it is contrary to its known policy or prejudicial to its interests. In addition to comity of nations we have judicial comity; a principle in accordance with which the courts in one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect.

The court below refused to recognize the purported divorce granted in Mexico on the theory that appellant had violated an injunction issued out of that court restraining appellant from prosecuting further his divorce proceedings in the Mexican courts. Appellant perpetrated a fraud on the local court due to the fact that he had instituted an action in the local court for divorce, and, while the action was pending therein, filed another divorce proceeding in the Mexican conrt. The court also refused to respect the decree of the Mexican court on the theory that appellant never acquired a bona fide residence in Mexico, and further that the fact that appellee appeared by counsel in the Mexican courts did not and could not confer jurisdiction. Without discussing each of these points, we think that the court was fully justified in its refusal to respect the decree in Mexico, because appellant had not acquired a bona fide residence in Mexico.

Appellee called to the stand, R. N. McCoy, superintendent of industrial relations, Republic Steel Corporation, Youngstown. He testified that he has access to the employment records as he did in the year 1938; that he had the records showing the employment of appellant, Louis Bobala; that he started to work for the Republic Steel Corporation in 1933; and that in 1938 he took a leave of absence. The witness further testified that on November 4,1938, he received a memo from the superintendent of the department in which Bobala was working, which memo stated that the superintendent had talked to Bobala who wanted a sixty-day furlough, and that the superintendent of the department was willing that Bobala should have this leave of absence; and that this memo was sent to the witness on November 4, 1938. The witness further testified that the superintendent of the department, after reaching this conclusion to give Bobala a furlough, granted appellant the right to be away from work for sixty days, beginning November 7, 1938, and ending January 7, 1939, and the superintendent provided that upon appellant’s return, on or before the expiration of this time limit, he would be restored to his job; and that appellant reported back for work on December 27, 1938, and has been employed by the Republic Steel Corporation since that time, and is now employed there.

It will be observed that appellant began his action for divorce in the Mexican courts during the interim between his furlough of November 7, 1938, and his return on December 27,1938.

We think that under the evidence in this case, the court was not in error in finding that appellant never established a bona fide residence in Mexico. That being true the court there acquired no jurisdiction, and the court here was not required under such circumstances to recognize the decree granted in the Mexican courts. The Ohio court had a right to make the finding it did, that the decree of the Mexican court was not res judicata. The Mahoning county court, having jurisdiction of the parties and subject-matter, had the power, right and jurisdiction to grant appellee a divorce, fix the custody of the child, provide for maintenance and support and fix a reasonable attorney’s fee. No complaint is made in this'court that the fixing of the custody of the child, or the amount of support, or the attorney’s fees are excessive.

In view of the holding of the United States Supreme Court in the case of United States v. Chaves, 159 U. S., 452, 40 L. Ed., 215, 16 S. Ct., 57, that courts of the United States are bound to take judicial notice of the laws of Mexico, we have made an examination to ascertain the status of the Mexican divorce from a jurisdictional standpoint and find that:

“In contemplation of subsequent trends in the divorce policies of some of the Mexican states it is of interest that it was expressly set forth, among the ‘whereases’ preceding the text of the law that, in order to prevent foreigners and residents of the Mexican states from taking advantage of this legislation, it was incumbent upon the parties seeking divorces to have resided one year within the territorial jurisdiction of the competent court.” 2 Law and Contemporary Problems (1935), 311.

We also find in 2 Martindale-Hubbell Law Directory, Law Digests (1941), under a summary of the divorce laws of Mexico, the following:

“Each state of the Mexican Union has its own divorce laws, most of which are similar to, whereas others differ widely from those of the Federal District. In several states (as in Sonora, Chihuahua, Campeche, Yucatan and Morelos) radical divorce laws are in force; but American courts have as a rule shown no tendency to recognize divorces under these laws when the status of American citizens not bona fide residents of Mexico is involved.”

However, if we are wrong in thus taking judicial notice of the laws of Mexico then the presumption arises, in the absence of proof of the foreign law to the contrary, that its laws are the. same as those of the forum, and bona fide residence is necessary as a condition precedent to granting a decree of divorce in the courts of Ohio. Mendelson v. Mendelson, 123 Ohio St., 11 to 13, 173 N. E., 615; 17 Ohio Jurisprudence, 115, Section 94.

For an able and enlightening discussion of the rights of the courts of the state of Ohio to ignore the decrees of foreign courts under the circumstances herein, see, 39 A. L. R,, 677, 689, 698; Van Fossen v. State, 37 Ohio St., 317, 41 Am. Rep., 507.

For a case similar to the case at bar see Lister v. Lister, 86 N. J. Eq., 30, 97 A., 170; Streitwolf v. Streitwolf, 181 U. S., 179, 45 L. Ed., 807, 21 S. Ct., 553.

Judgment affirmed.

Phillips, J., concurs.

Nichols, P. J., concurs in judgment.  