Gordon Phelps Kelley, III v. Joanna Kelley, individually, and Joanna Kelley and Northern Trust Bank of Florida, Bank of New York, Camille Weiss and Errett Van Nice, Amnesty International of the U.S.A., Inc., Cousteau Society and World Wildlife Fund

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014

GORDON PHELPS KELLEY, III,
Appellant,

v.

JOANNA KELLEY, individually, and JOANNA KELLEY and NORTHERN
TRUST BANK OF FLORIDA, N.A., as Co-Trustees of the Marital Trust
created under the 2008 will; BANK OF NEW YORK, CAMILLE WEISS
and ERRETT VAN NICE, as Co-Trustees of the Gordon P. Kelley, Jr.,
Agreement, AMNESTY INTERNATIONAL OF THE U.S.A., INC.,
COUSTEAU SOCIETY and WORLD WILDLIFE FUND,
Appellees.

Nos. 4D13-21
and 4D13-576

[September 10, 2014]

Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mel Grossman, Judge; L.T. Case Nos.
10-0360-60 and 12-3958PRC.

Edward Downey and R. Lee McElroy, IV of Downey & Downey, P.A.,
Palm Beach Gardens, for appellant.

Bernard Allen and Frank T. Adams of Katz Barron Squitero Faust,
Miami, for appellee Joanna Kelley.

James R. George and Tattiana Brenes-Stahl of Greenberg Traurig, P.A.,
Fort Lauderdale, for appelle, Northern Trust Bank of Florida, N.A.

Douglas F. Hoffman of Rudolf & Hoffman, P.A., for appellees Amnesty
International of the U.S.A., Inc., Cousteau Society and World Wildlife
Fund.

GROSS, J.

At issue is a third party’s ability to collaterally attack a foreign state’s
judgment within the confines of the Full Faith and Credit Clause.
Appellant Gordon Kelley III (“Gordon III”), a son disinherited under his
father’s will, challenges two orders that dismissed his actions seeking to
invalidate his father’s exercise of a limited power of appointment on the
grounds that his father was not legally married to his second wife, the
intended beneficiary of the appointment. Specifically, Gordon III alleged
his father’s 1979 Nevada divorce to a prior wife was void since neither
party satisfied that state’s jurisdictional residency requirement, making
the father’s marriage to his current wife bigamous—and thus void as
against public policy.

Focusing on the full faith and credit aspect of the claim, a collateral
attack on a foreign state’s judgment may be entertained only if the attack
would be permissible in the foreign state. Since both Gordon III’s father
and his prior wife bound themselves to the divorce decree by participating
in the Nevada proceeding and since, by statute, Nevada prohibits third-
party attacks on divorce decrees binding upon the parties, so too Gordon
III is barred from collaterally attacking the decree in Florida. Accordingly,
we affirm.

Factual Background

The seeds of this controversy were planted on February 23, 1956, when
Gordon III’s grandfather, Gordon P. Kelley (“Gordon I”), created the Gordon
P. Kelley Trust Fund (“the Kelley Trust”), an irrevocable trust benefiting
his children. Per the Kelley Trust’s terms, upon Gordon I’s death, the trust
estate was split into separate trust funds, with each of his children
receiving “so much of the net income of such funds as the Trustees in their
discretion . . . deem[ed] reasonably necessary to provide for the[ir] support
and education.” Any remaining income not disbursed to the child would
accumulate and be added to the child’s trust principal.

The Kelley Trust conferred upon each child the limited testamentary
power to appoint a beneficiary for the trust principal, with the limitation
that the selection fall within four recipient classes: (1) Gordon I’s lawful
descendants, (2) the spouses of such descendants, (3) the child’s spouse,
or (4) certain charitable organizations. Failure to make a valid
appointment would result in the principal being distributed to the child’s
descendants per stripes.

Relying upon this provision, Gordon III’s father (“Gordon Jr.”) exercised
his power of appointment through Article IV(A) of his last will and
testament (“the Will”), directing that his trust principal pass into a “Marital
Trust.” As defined within the Will, the Marital Trust dictated that Gordon
Jr.’s wife, appellee Joanna Kelley (“Joanna”), receive discretionary income
during her lifetime, with the remainder passing upon her death to

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appellees Amnesty International of the U.S.A. Inc, the Cousteau Society,
and the World Wildlife Fund. The Will expressly disinherited Gordon III.

Procedural Posture

Following Gordon Jr.’s death, Joanna, as personal representative for
his estate, petitioned for administration, requesting that the Will be
admitted into probate. Not succumbing to his disinherited status, Gordon
III responded by filing a petition in the probate court seeking (1) to revoke
probate and (2) to declare the exercise of Gordon Jr.’s power of
appointment improper as conferred under the Kelley Trust. In addition,
Gordon III filed a complaint in the circuit court seeking declaratory relief
pursuant to sections 86.041 and 736.0201(4)(e)-(f), Florida Statutes
(2010), mirroring the language of the second amended petition’s Count IV.

In Count IV, Gordon III sought a declaration finding Gordon Jr.’s
exercise of his power of appointment invalid since Joanna was not his legal
spouse, and thus was “not a permissible appointee” under the Kelley
Trust. The count alleged that in 1979 Gordon Jr.’s first wife, Holly
Burguieres, “appeared in Nevada for a ‘quickie divorce’” and secured a
divorce decree after falsely asserting she was a resident of Nevada.
Evidence of the ruse was allegedly memorialized by a financial agreement
confirmed and incorporated by the trial court in its final dissolution
judgment, which reflects that Burguieres actually resided in Mexico City.

Alleging that neither Burguieres nor Gordon Jr. satisfied Nevada’s six-
week residency requirement, Gordon III contended the Nevada court
lacked subject matter jurisdiction over their case, rendering the divorce
decree void. Building upon this revelation, since Gordon Jr. was still
legally “married” to Burguieres, his marriage to Joanna would be
bigamous—and thus void as against public policy—making Gordon Jr.’s
exercise of his power of appointment in Joanna’s favor invalid, since she
did not fall within the four classes of beneficiaries permitted by the Kelley
Trust. As a result, Gordon III averred “all assets of the [Kelley Trust] are
distributable to [himself] as the default taker.”

The Trial Court’s Order

Upon the appellees’ collective motions, the trial court entered an order
dismissing Counts III1 and IV of the second amended petition, confirming

1 We affirm without discussion the dismissal of Count III, which sought to
invalidate Gordon Jr.’s exercise of his power of appointment upon technical
grounds.

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the validity of Joanna’s marriage to Gordon Jr. With regard to Count IV,
the trial court found Gordon III substantively barred from collaterally
attacking the Nevada decree since Gordon Jr.’s participation in the
proceeding bound himself—and Gordon III—to the judgment. Facing the
same allegations as Count IV, the trial court entered a nearly identical
order dismissing Gordon III’s complaint for declaratory relief. As the
issues presented in Gordon III’s complaint and second amended petition
overlap, both cases have been consolidated for the purposes of this appeal.

Full Faith and Credit

Gordon III contends the trial court was “not required or entitled to give
full faith and credit to the [Nevada divorce decree] as neither spouse
resided in Nevada thus causing the 1979 divorce decree to be void.” This
claim crumbles against the Full Faith and Credit Clause of the Federal
Constitution.

Since a trial court’s decision to dismiss a complaint seeking declaratory
relief is afforded great deference, Palumbo v. Moore, 777 So. 2d 1177, 1178
(Fla. 5th DCA 2001) (citing Travelers Ins. Co. v. Emery, 579 So. 2d 798,
800 (Fla. 1st DCA 1991)), our review is for an abuse of discretion.
Leganella v. Boca Grove Golf & Tennis Club, Inc., 690 So. 2d 705, 706 (Fla.
4th DCA 1997). Within this evaluation, we “accept the factual allegations
of the operative complaints as true and consider them in the light most
favorable to the” appellant/petitioner. Knight v. Merhige, 133 So. 3d 1140,
1141 (Fla. 4th DCA 2014). In the declaratory judgment setting, “‘[t]he test
of the sufficiency of a complaint . . . is not whether the complaint shows
that the plaintiff will succeed in getting a declaration of rights in
accordance with his theory and contention, but whether he is entitled to a
declaration of rights at all.’” S. Riverwalk Invs., LLC v. City of Fort
Lauderdale, 934 So. 2d 620, 622 (Fla. 4th DCA 2006) (quoting Golf Club v.
City of Plantation, 717 So. 2d 166, 171 (Fla. 4th DCA 1998)).

“The Full Faith and Credit Clause is one of several provisions in the
Federal Constitution designed to transform the several States from
independent sovereignties into a single, unified Nation.” Allstate Ins. Co.
v. Hague, 449 U.S. 302, 322 (1981) (Stevens, J., concurring). Through the
clause’s application, “[a] judgment entered in one state must be respected
in another provided that the first state had jurisdiction over the parties
and the subject matter.” Nevada v. Hall, 440 U.S. 410, 421 (1979). Where
subject matter or personal jurisdiction is lacking, however, the clause is
tempered by limitation. As the United States Supreme Court has
explained:

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 [A] judgment of a court in one State is conclusive upon the
merits in a court in another State only if the court in the first
State had power to pass on the merits—had jurisdiction, that
is, to render the judgment. Consequently, before a court is
bound by the judgment rendered in another State, it may
inquire into the jurisdictional basis of the foreign court’s
decree. If that court did not have jurisdiction over the subject
matter or the relevant parties full faith and credit need not be
given.

Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar.
Ass’n, 455 U.S. 691, 704–705 (1982) (internal citations and footnote
omitted); Trauger v. A.J. Spagnol Lumber Co., 442 So. 2d 182, 183 (Fla.
1983) (“The full faith and credit clause does not . . . protect a judgment
which was entered by a court that did not have personal or subject matter
jurisdiction in the action . . . . ” (citing Miliken v. Meyer, 311 U.S. 457
(1940))).

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. See Johnson
v. Muelberger, 340 U.S. 581, 589 (1951). 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. In re
Marriage of Winegard, 278 N.W.2d 505, 508 (Iowa 1979). 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. Sherrer v. Sherrer, 334 U.S. 343, 351
(1948) (footnote omitted); Coe v. Coe, 334 U.S. 378 (1948).

In this case, Burguieres initiated the Nevada dissolution proceedings
by filing a verified complaint with the trial court, in which she attested to
Nevada’s limited jurisdictional requirements. After Gordon Jr. answered
the complaint without raising a jurisdictional challenge, Burguieres
appeared in court and confirmed her residency allegations. As a result,
the trial court, in its written order, made a factual finding that Burguieres

is now and has been for more than six weeks preceding the
filing of the complaint herein a bona fide resident of and
domiciled in the State of Nevada and has been physically and
corporally present in said State each and every day for said
period of time, and all of said time plaintiff has had and still

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 has the intent to make said State her home residence and
domicile for an indefinite period of time.

Given the participation by both Gordon Jr. and Burguieres, Gordon III’s
claim falls squarely within Nevada’s statutory prohibition on “all third-
party attacks on Nevada divorce decrees that are binding on the parties to
the divorce action.” Madden v. Cosden, 314 A.2d 128, 132 (Md. 1974)
(citation omitted). As provided by Section 125.185, Nevada Revised
Statutes (2010):

No divorce from the bonds of matrimony heretofore or
hereafter granted by a court of competent jurisdiction of the
State of Nevada, which divorce is valid and binding upon each
of the parties thereto, may be contested or attacked by third
persons not parties thereto.

The driving force behind Nevada’s statutory impediment on collaterally
attacking divorce decrees has its origins in the state’s decision to establish
itself as a premiere divorce destination. A low barrier to attacking a
Nevada divorce decree would have been bad for business. As one
commentator explains:

To escape states with harsh laws, people with money (or, more
frequently, wives of people with money) could get on a train
and head for a “divorce mill.” Throughout much of the
twentieth century, the divorce mill was Nevada. It needed the
business, and moral qualms, for whatever reason, have never
played a big role in Nevada jurisprudence. In 1927, Nevada
reduced its residence period to three months, and in 1931, in
a “frenzied attempt to head off . . . threatened rivalry” from
other states, Nevada reduced the residence period still further,
to six weeks. “Going to Reno” became almost a synonym for
getting a divorce.

Lawrence M. Friedman, A Dead Language: Divorce Law and Practice Before
No-Fault, 86 Va. L. Rev. 1497, 1504-05 (2000). Since both Gordon Jr. and
Burguieres participated in the divorce proceedings and are bound by the
Nevada decree, Nevada law precludes Gordon III’s collateral attack. The
Faith and Credit Clause therefore bars his full assault on the Nevada
judgment in Florida.

Nevertheless, even overlooking this statutory bar, Gordon III’s claim is
also ineffective as an assertion of intrinsic—as against extrinsic—fraud.
Like many states, Nevada courts adhere to the rule “that a decree of

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divorce may be annulled by an independent proceeding for that purpose
[only] upon proof of extrinsic fraud.” Colby v. Colby, 369 P.2d 1019, 1021
(Nev. 1962) (citations omitted); Confer v. Second Judicial Dist. Court in &
for Washoe Cnty., 234 P. 688, 689 (Nev. 1925). Intrinsic fraud
encompasses “‘fraudulent conduct that arises within a proceeding and
pertains to the issues in the case that have been tried or could have been
tried.’” Thompson v. Crawford, 479 So. 2d 169, 183-84 (Fla. 3d DCA 1985)
(quoting Declaire v. Yohanan, 453 So. 2d 375, 377 (Fla. 1984)); see also
Calvert v. Calvert, 122 P.2d 426, 427 (Nev. 1942). Extrinsic fraud, on the
other hand, is fraud “the effect of which prevents a party from having a
trial, or from presenting all of his case to the court, or which operates, not
upon the matters pertaining to the judgment itself, but to the manner in
which it is procured.” Chamblin v. Chamblin, 27 P.2d 1061, 1061 (Nev.
1934) (citation omitted).

In this case, since Gordon Jr. appeared through counsel and the face
of the record depicts competent, substantial evidence from which the
Nevada trial court could find the existence of jurisdiction, the fraud
asserted is intrinsic—i.e., Burguieres lied. See, e.g., Colby, 369 P.2d at
1021 (“Nothing appears from the record before us tending to establish that
Benjamin was prevented by Sarah’s conduct from a fair opportunity to
assert his rights in or present his defenses to the Nevada action. . . . Clearly
the ‘fraud’ here contended for is intrinsic; it is not extrinsic.”). Accordingly,
absent assertions of extrinsic fraud, Gordon III’s collateral attack lacks
sufficient backing to survive dismissal.

Florida Jurisprudence

To blunt our ruling, Gordon III contends the Florida Supreme Court’s
decision in In re Estate of Kant, 272 So. 2d 153 (Fla. 1972), provides the
child of a decedent, as a lineal descendant, with unbridled “standing to
challenge and impeach the validity of a divorce decree [in Florida] when it
will affect the validity of a later marriage to the reputed surviving spouse.”
In Kant, the deceased’s children alleged in an answer to a petition for
letters of administration that the deceased’s marriage to his current wife
was void since the wife’s prior divorce to a different spouse in Mexico had
never been “rendered.” In re Estate of Kant, 265 So. 2d 524, 525 (Fla. 3d
DCA 1972). At trial, the children presented evidence that the divorce
decree was actually a forgery. Kant, 272 So. 2d at 155. As a result, the
trial court denied the petition for letters of administration, finding that the
current wife “was in fact not the widow of the deceased because she had
not been lawfully divorced from her prior husband.” Id.

On appeal, the central issue was whether the children had standing “to

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attack collaterally the validity of the Mexican divorce.” Id. at 156. Noting
that the “answer to this question depends upon whether the . . . children
had any rights prejudiced by the alleged Mexican divorce decree,” our
Supreme Court held the children “did have such rights because at the time
of such alleged divorce they, as lineal descendents (sic) of their father, . . .
were his sole heirs.” Id. As a result, since the children were “strangers to
the appeal,” “[b]eing neither parties to the action, nor entitled to manage
the cause, nor appeal from the judgment,” the court held “they [we]re by
law allowed to impeach it.” Id. (quoting Freeman on Judgments, Vol. 1,
page 636, Section 319).

The crucial difference between Kant and this case is that the Full Faith
and Credit Clause was not at issue, since “[s]tates are not required to give
full faith and credit to divorces rendered in foreign nations” such as
Mexico. In re Schorr’s Estate, 409 So. 2d 487, 489 (Fla. 4th DCA 1981)
(emphasis added). Bound by the precepts of full faith and credit, Gordon
III was required—unlike the children in Kant—to demonstrate his ability
to bring the action under the foreign state’s jurisprudence. Since, as
discussed previously, Gordon III failed to meet this hurdle, his action was
impotent and properly subject to dismissal.

Affirmed.

CIKLIN, J., and KASTRENAKES, JOHN, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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