Geraets v. Geraets

AMUNDSON, Justice

(dissenting).

The stipulation and agreement signed by the parties on December 22, 1992, and filed with the court on January 5, 1993, provided in part as follows:

[T]o finalize the division of property owned by them or either of them, and all other rights of property otherwise growing out of the marriage relationship that either of them now has or may hereafter have or claim to have in any property of every kind, nature, and description, real or personal now owned or which may hereafter be acquired by either of them[.]

This stipulation was approved by the court and incorporated into the judgment and decree of divorce entered on December 22, 1992.

This court is required to sua sponte take notice of jurisdictional questions, whether presented by the parties or not. Hardy v. West Cent. School Dist. No. 4.9-7, 478 N.W.2d 832 (S.D.1991). In Hardy we held:

This court generally has a duty to determine whether the trial court has jurisdiction over a matter as a condition precedent to its right to decide the issues involved. Long v. Knight Const. Co., Inc., 262 N.W.2d 207 (S.D.1978); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962). Even if none of the parties have challenged jurisdiction, this court will, sua sponte, determine whether the lower court had jurisdiction. Estate of Putnam, 254 N.W.2d 460 (S.D.1977); Shryoch v. Mitchell Concrete Products, Inc., 87 S.D. 566, 212 N.W.2d 498 (1973); Tri-State Milling Co. v. Board of County Comrs., Pennington County, 75 S.D. 466, 68 N.W.2d 104 (1955). In the present ease, although none of the parties challenged the circuit court’s jurisdiction, we find it necessary to make a sua sponte determination.

Id. at 833.

The trial court in this case had no jurisdiction or authority whatsoever to reconsider the parties’ property division after entry of the 1993 divorce decree. This is particularly true in view of the fact that the 1993 decree incorporated a stipulation and agreement in which both parties expressly waived their *203interests in each other’s property. Moreover, the fact that the parties acquiesced in the trial court’s subsequent assumption of jurisdiction over the property division is of no consequence to this conclusion. Jurisdiction cannot be conferred by agreement, consent or waiver. Matter of Guardianship of Sasse, 363 N.W.2d 209, 212 (S.D.1985).

It is fundamental that a judgment rendered by a court without jurisdiction to pronounce it is void. Nolan v. Nolan, 490 N.W.2d 517, 520 (S.D.1992). Accordingly, the so-called amended divorce decree entered by the trial court in 1995 and purporting to divide the parties’ marital property should be reversed for lack of jurisdiction. See Zwanziger v. Zwanziger, 286 N.W.2d 123, 124-25 (S.D.1979) (divorce decree void for lack of trial court jurisdiction reversed).

A contrary conclusion embracing the concept of deferred property divisions merely fosters creation of the very sort of issues Ethel raises in this appeal, i.e., whether the marital estate should be valued according to the time of entry of the divorce decree or according to the time of the property division itself.

After the trial court enters a judgment which grants the divorce and approves the parties’ agreement, why is there a need for a trial? It is final. Do we not try a case prior to the entry of a judgment? Is this an example of placing the cart in front of the horse? Finally, nothing in the documents filed in January of 1993 provided for a trial at some later time on issues not encompassed in the parties’ stipulation.

Therefore, I would reverse this case based on the fundamental issue of no jurisdiction to hold this trial some two years later. The parties were divorced as of December 22, 1992.