In a recent case heard by the Fourth District Court of Appeal of Florida (“4th DCA”), Kelley v. Kelley, 2014 Fla. App. LEXIS 14008 (Fla. 4th DCA 2014), the Court held that a son’s collateral attack in Florida on his father’s Nevada divorce was barred by the Full Faith and Credit clause of the United States Constitution since both the father and his prior wife bound themselves to the divorce decree by participating in the Nevada proceeding and Nevada state law prohibited third-party attacks on divorce decrees binding upon the parties. The son’s claim that his father’s prior wife lied about the residency requirement for the Nevada divorce failed since the father appeared through counsel and the record depicted substantial evidence from which the Nevada court could find jurisdiction.
The beginning of this controversy start in 1956, when Gordon III’s grandfather created the Kelley Trust, an irrevocable trust benefiting his children. Upon the grandfather’s death, the trust was split into separate trust funds, with each of his children receiving so much of the net income as the Trustees in their discretion deemed reasonably necessary to provide for their support and education. Relying upon another provision in the trust that allowed each child to appoint a beneficiary for the trust principal, Gordon III’s father, Gordon Jr. directed that his trust principal pass into a separate Marital Trust which dictated that Gordon Jr.’s wife, Joanna, receive discretionary income during her lifetime. The Will expressly disinherited Gordon III.
Following Gordon Jr.’s death, his wife and personal representative of the estate requested that the Will be admitted to probate, and Gordon III responded by filing a petition to revoke probate and to declare the exercise of Gordon Jr.’s appointment of a beneficiary improper under the Kelley Trust since Joanna was not his legal spouse, and thus was “not a permissible appointee” under the Kelley Trust. Under the Kelley Trust, only descendants, spouses, or certain charitable organizations could be valid beneficiaries for the trust principal. Gordon III alleged that in 1979, Gordon Jr.’s first wife, Holly, appeared in Nevada for a ‘quickie’ divorce, and secured a divorce decree after falsely asserting she was a resident of Nevada. Evidence of such was memorialized by a financial agreement confirmed by the trial court in its final dissolution judgment, which showed that Holly actually resided in Mexico City. Therefore, because she lacked Nevada’s six-week residency requirement to obtain a divorce, Gordon III argued that the Nevada Court lacked subject matter jurisdiction over the case, rendering the divorce invalid, and therefore he was still legally married to Holly, and his marriage to Joanna would be void as against public policy. Consequently, Gordon Jr.’s power of appointment to Joanna would be invalid since she did not fall under the classes of beneficiaries permitted by the Kelley Trust.
The trial court found that Gordon III was barred from collaterally attacking the Nevada divorce decree since Gordon Jr.’s participation in the proceeding themselves bound himself, and subsequently Gordon III to the judgment.
On appeal, Gordon III argued that according to the Full Faith and Credit Clause, a Florida probate judge was not entitled to give effect to his father’s Nevada divorce. The 4th DCA disagreed, and discussed the controlling test for collaterally attacking another state’s divorce decree on constitutional grounds:
Consistent with full faith and credit, a divorce decree obtained in a foreign state is impeachable in Florida only if the judgment is susceptible to collateral attack under the foreign state’s jurisprudence. This rule “provide[s] a substantial degree of uniformity regarding the vulnerability of divorce decrees to collateral attack,” enhancing the finality of each state’s judgments. Furthermore, collateral attacks wilt against judgments involving parties who have had their day in court; where “there has been participation by the [parties] in the divorce proceedings” and “the [parties] ha[ve] been accorded full opportunity to contest the jurisdictional issues,” any further attack on the judgment is barred by res judicata.
Because both parties participated in and accepted the controversial divorce, Gordon III’s argument failed and Nevada law precluded his collateral attacks. The Full Faith and Credit Clause therefore barred his full assault on the Nevada judgment for dissolution of marriage in Florida. Moreover, the 4th DCA held that absent assertions of extrinsic fraud, which would prevent a fair opportunity for the parties to assert their rights or defenses in the case, Gordon III’s collateral attack lacks sufficient backing to survive dismissal and therefore the 4th DCA agreed with the Florida probate court. Gordon III could not demonstrate his ability to bring the action under the foreign state’s jurisprudence and therefore failed to meet this important hurdle under Full Faith and Credit in Florida.
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