(dissenting).
I would affirm.
In her complaint for divorce, plaintiff alleged that one child had been born to her marriage with defendant. Defendant made the same allegation in his counterclaim for divorce. Nowhere in the several affidavits filed by plaintiff is there any contention that she was not aware of the allegation that she had made in her complaint or that defendant had made in his counterclaim with respect to the birth of the child. Plaintiff does not contend that she was unaware of the child’s paternity at the time the divorce action was commenced. Thus the situation that existed in Anderson v. Anderson, 85 S.D. 152, 179 N.W.2d 1; on remand, 86 S.D. 757, 201 N.W.2d 394, is not present here.
Plaintiff testified that she learned in March of 1975 that a decree of divorce had been granted. If ever there was a time that she should have taken steps to have that decree set aside or modified, it was then. Instead of taking any such action, however, plaintiff relied upon the decree by marrying, in August of 1975, the man with whom she had been living for a number of months. This action on her part obviates the necessity of a discussion of the principles of res judicata on our part, for having accepted its benefits, plaintiff will not be heard to assert the nullity and invalidity of the judgment. Brockel v. Brockel, 80 S.D. 547, 128 N.W.2d 558.
The evidence concerning the alleged change of circumstances subsequent to the entry of the February 28, 1975 decree of divorce was such that the trial court was not in error in holding that the award of custody should not be modified. Masek v. Masek, S.D., 237 N.W.2d 432.
I am authorized to state that Circuit Judge HERTZ joins in this dissent.