No. 88-122
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
JULIANNE P. PARRISH, formerly
JULIANNE P . APPLETON
Petitioner and Appellant,
and
JERE THOMAS APPLETON
Respondent and Respondent.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge presiding.
COIJNSEL OF RECORD:
For Appellant:
Douglas & Sprinkle; S.Charles Sprinkle, I,ibby, Montana
For Respondent:
I-
&
Donald. L. Shaffer, Libby, Montana
a3
Submitted on Briefs: Sept. 1, 1988
Decided: October 20, 1988
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Jere Thomas Appleton (Jere) appeals from the judgment of
the District Court of the Nineteenth Judicial District,
Lincoln County. The court held it had jurisdiction to enter
the original dissolution decree in this case and granted a
motion by Julianne P. Parrish, f.k.a. Julianne Appleton
(Julie), for increased child support. We affirm the court's
decision, but remand for modification of the child support
award.
Jere presents four main issues in his appeal:
1. Did the District Court have jurisdiction to enter the
original judgment and decree?
2. Has all or part of the judgment for child support
arrearage obtained by Julie lapsed or become subject to
laches and estoppel?
3. Does the absence of responsive pleadings or briefs
require reversal under the Uniform District Court Rules?
4. Was there sufficient evidence to support an increase
in child support?
The facts are essentially agreed upon by the parties.
Jere and Julie were married in Tennessee in 1965. They had
two sons: John in 1966 and Michael in 1967. In early 1972,
Julie moved with the two children to Texas. In June of that
same year, Jere obtained a default judgment in Tennessee
dissolving the marriage. Service of the judgment was made by
publication in accordance with Tennessee law.
In September, 1972, Julie and Jere reconciled and began
living together in Texas. Julie had not received a copy of
the Tennessee divorce decree, and Jere did not tell her about
it. Two more children were born: Tim in 1973 and Jenny in
1976. In 1979, the family moved to Montana. Relations
between Julie and Jere deteriorated. While it is not clear
from the record, it appears that approximately six months
after they took up residence in Montana, Julie told Jere she
wanted him to leave. She also said she was planning to file
for divorce. Jere then told Julie they were already
divorced. At some point after this conversation Jere left,
taking one of the children with him.
On July 30, 1980, Julie executed a petition for
dissolution which was then filed in Montana District Court.
The petition referred to the 1965 Tennessee marriage. Notice
of the proceeding was personally served on Jere in Tennessee
on August 11, 1980. Jere did not appear in the original
proceeding, but his attorney wrote to counsel for Julie and
informed him that the marriage had been dissolved in 1972.
Julie's attorney replied with a letter informing Jere's
attorney that Montana recognizes common-law marriage, and
that Julie's main goal was to obtain child support from Jere.
On October 6, 1980, the District Court granted Julie a decree
of dissolution.
In April, 1987, Jere filed a motion in the District
Court requesting the 1980 dissolution decree be declared
invalid on the grounds that the court lacked jurisdiction, or
alternatively, that the decree was obtained through
"extrinsic constructive fraud.'' In June, 1987, Julie filed a.
motion seeking an increase in child support. Neither party
responded to the other's motion. Hearing on the two motions
was had on June 22, 1987, and the court issued its judgment
on September 10, 1987. This appeal followed.
I.
Jere attacks the District Court's jurisdiction to enter
the 1980 decree. He argues: (1) the court never obtained in
personam jurisdiction over him under Rule 4 B , M.R.Civ.P., ( 2 )
the judgment is void because it was pre-empted by the Uniform
Reciprocal Enforcement of Support Act (URESA), and (3) the
proceeding was void because Julie's petition amounted to
"extrinsic constructive fraud."
Rule 4B, M.R.Civ.P., confers in personam jurisdiction to
the courts of Montana over "[a] 11 persons found within the
state of Montana" and all persons whose actions within the
state subject them to long-arm jurisdiction. Jere contends
he was residing in Tennessee when served with process and
took no action that would subject him to long-arm
jurisdiction. He argues the District Court therefore lacked
in personam jurisdiction to enter a money judgment against
him.
A divorce action is generally in rem as to the status of
the parties, and in personam as to other matters. Bad Horse
v. Bad Horse (1974), 163 Mont. 445, 517 P.2d 893. The
District Court therefore did not need in personam
jurisdiction to grant the dissolution. Montana law in effect
at the time of the 1980 hearing specifically granted
jurisdiction to determine custody where the children involved
were living within the state. Section 40-4-211, MCA (1979).
The District Court therefore had jurisdiction to grant
custody of Michael, Tim and Jenny, who were living in Montana
in 1980. The District Court was without jurisdiction in 1980
to grant custody of John, who had left Montana with his
father and was living in Tennessee. The court was also
without jurisdiction to order child support from Jere, as it
did not have in personam jurisdiction over him under Rule 4BI
M.R.Civ.P.
In 1985, Julie initiated a URESA action in Montana to
obtain payment of child support. Under URESA, she was able
to seek the assistance of Tennessee courts in obtaining
support. Jere argues the URESA proceedings pre-empted the
District Court, because jurisdiction over the divorce had
become vested in a Tennessee court. This argument is without
merit. URESA, as adopted in Montana and Tennessee, provides:
The remedies herein provided are in addition to and
not in substitution for any other remedies.
Section 40-5-104, MCA; see, S 36-5-203, TCA.
Jere's final attack on the District Court's jurisdiction
asserts the decree was obtained through extrinsic
constructive fraud. He points out Julie's pleading was based
on the 1965 marriage, yet did not mention the Tennessee
divorce decree. No allegation of common-law marriage was
made, nor was there any mention of Jere's Tennessee
residency. Jere argues these errors and omissions, while not
intentionally fraudulent, worked fraud upon the court by
alleging a legal marriage that did not exist. He asserts a
court sitting in equity has inherent power to grant relief
from a judgment obtained through fraud, citing Selway v.
Burns (1967), 150 Mont. 1, 429 P.2d 640.
A court hearing a divorce action sits in equity.
Johnson v. Johnson (1960), 137 Mont. 11, 349 P.2d 310.
However, a well-established tenet of equity is that one who
seeks equity must do equity. Barbour v. Barbour (1958), 134
Mont. 317, 330 P.2d 1093.
Julie's 1980 dissolution petition was indeed based on
the 1965 marriage; did not mention the Tennessee divorce
decree; and listed the address of all family members as
Libby, Montana. The petition was nonetheless made in good
faith. Jere had concealed the existence of the Tennessee
decree from Julie for nearly eight years. His disclosure,
when it finally came, was made in response to Julie's
statement that she was contemplating filing for divorce.
Given her lack of actual notice of the Tennessee decree, it
is understandable that Julie might not believe Jere.
As to the addresses, the petition was filed on August 1,
1980. Jere was found and service effected on him in
Tennessee on August 11, 1980. According to the affidavit of
John, the eldest child, he and his father left Montana some
time in August. When the petition was filed, Julie knew of
no address for Jere other than his most recent one in Libby.
Jere and Julie were married when Julie filed her
petition in District Court. They had been living together
and holding themselves out as husband and wife in Texas and
in Montana. A common-law marriage therefore existed between
them under $ 26-1-602(30), MCA. Spradlin v. U.S. (D.C. Mont.
1967), 262 F.Supp. 502. The District Court noted in its
conclusions of law from the 1987 hearing:
Whether or not the parties intended to resume the
formalized marriage or to create a new marriage by
common law is irrelevant since the only
prerequisite to a Montana dissolution decree is
that a marriage of some form existed between the
parties.
Given Jere's own acts of deceit and Julie's good faith in
pleading, we see no reason to grant Jere equitable relief by
voiding the 1980 decree.
Finally, we note Jere appeared through counsel at the
1987 hearing. At that point, the court obtained in personam
jurisdiction over him. Rule 4B(2), M.R.Civ.P. We have held
a District Court can award child support retroactively when
the issue is properly before the court pursuant to the
parties' pleadings. In re Marriage of DiPasquale (Mont.
1986), 716 P.2d 223, 225, 43 St.Rep. 557, 559. However, no
issue of retroactive support was before the court in this
case. Julie's motion for modification sought an increase in
support to $200 per month, but did not seek support
retroactive to 1980. Therefore, the only issue of child
support before the court at the 1987 hearing was whether
Julie was entitled to payments of $200 per month.
We affirm the District Court's decision that it had
jurisdiction in this matter, and its award of $200 per month
in child support beginning in 1987. However, we hold the
court was without in personam jurisdiction to award child
support in 1980, and could not in 1987 make an award of
retroactive support when it was not sought in the pleadings.
11.
Jere next argues the District Court's award of arrears
in child support has lapsed, or is subject to laches and
estoppel. This argument is rendered moot by our
determination above that the court could not award child
support for periods prior to 1987.
Jere points out no pleading was filed in response to his
motion to void the 1980 decree, nor any brief filed in
support of Julie's motion for modification of child support.
He argues the Uniform District Court Rules (UDCR) therefore
dictate his motion should be deemed "well-taken," and Julie's
deemed "without merit."
Julie filed an affidavit in support of her motion, hut
filed no brief. Jere, however, did no better. His motion
was also supported only by an affidavit. While Jere ' s
affidavit was labeled "Brief in Support of Motion," it
contained nothing more than his sworn statement. Neither
party responded to the other's motion. Accepting Jere's
argument would 1.ead to the absurd conclusion that the court
had before it two motions deemed well-taken, and at the same
time without merit.
Pursuant to Rule 2, UDCR, the District Court held oral
argument on both motions. This gave Jere and Julie an
opportunity to argue in support of their own motion and
against each other's motion. The court followed a wise
course, and we see no reason to overturn its a-ecision on
technical grounds.
IV.
Finally, Jere argues there was not sufficient evidence
to support an increase in child support. Because we held
above the District Court's award of support in 1980 was void,
discussing modification of that award would be illogical. We
will therefore treat the court's 1987 award of $200 per month
as an initial child support award rather than a modification.
The District Court has authority to require either or
both parents to pay "reasonable or necessary" child support.
Section 40-4-204, MCA. An award of child support made by the
District Court will not be overturned unless there has been a
clear abuse of discretion resulting in substantial injustice.
In re Marriage of Alt (Mont. 1985), 708 P.2d 258, 42 St.Rep.
1621.
The record contains affidavits, pleadings and written
testimony from the URESA action, and the Tennessee judgment
obtained by Julie directing Jere to pay child support. The
combination of these documents and Julie's testimony at the
1987 hearing shows her earning power, financial resources and
liabilities; the needs of her children; and the determination
of another court that she is entitled to $200 per month in
support. Given this evidence, the District Court did not
abuse its discretion by awarding child support of $200 per
month.
We affirm the decision of the District Court, but remand
the case to have stricken that portion of the judgment
awarding retroactive child support for periods prior to 1987.
HE- Justice