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 
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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 thirdparty 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 sixweek 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 thirdparty 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.