Hahne v. Hahne

*366SABERS, Justice

(dissenting).

1.Child support.

I would affirm the trial court on child support. The January 11, 1983, order states that Anthony was “current through the month of June, 1982,” but must pay $116 per month thereafter until February 1983 when the monthly payments will increase to $200. The August 28,1984, order merely states that Anthony “no longer” is obligated to make the child support payments. Gloria subsequently instituted this action seeking to have the child support order enforced. The trial court reasonably concluded that Anthony had not fulfilled his obligation and found him in contempt of the Minnesota court’s orders.

Contrary to the opinion of the majority, Gloria was not attempting to relitigate the issue of child support. Instead she was simply requesting that South Dakota give full faith and credit to the Minnesota orders and enforce them. The trial court enforced the orders in accordance with its interpretation of the orders. “[I]t is the court’s responsibility to construe the judgment so as to give effect to the intention of the trial court[.]” In re Marriage of Cross, 55 Or.App. 422, 425, 637 P.2d 1386, 1388 (1981); see also Erbe v. Eady, 406 So.2d 936 (Ala.Civ.App.1981) (court interpreted uncertainty in a California divorce decree), writ denied, 406 So.2d 939 (Ala.1981), cert. denied, 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982); Lester v. Lester, 104 Idaho 244, 245, 658 P.2d 915, 916 (1983) (Court may “refer to the circumstances surrounding the making of the judgment in attempting to interpret it.”). Since the trial court’s interpretation of the Minnesota orders is reasonable and supported by the evidence, it should be upheld. See Halverson v. Halverson, 381 N.W.2d 69 (Minn.Ct.App.1986).

2.Endorsement of life insurance policy.

I would also affirm the trial court on this issue because the statute of limitations does not run on a judgment which requires continuing payments and transfer of ownership. The situation may be otherwise if the life insurance policy were paid up. The statute of limitations would start to run from the expiration of the judgment or from a known breach.

3.Alimony.

The Minnesota trial court reserved judgment on alimony. Although the South Dakota court can accept jurisdiction and modify judgment, it does not have to. Restatement (Second) of Conflict of Laws § 109(2) (1971); * see also People of the State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 906, 91 L.Ed. 1133, 1136 (1947) (“So far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the [divorce] decree, New York may do.”). But here, the trial court (Judge Berndt) concluded he could not accept jurisdiction and modify the judgment on the basis that he thought he had no jurisdiction. He was incorrect in this and it should be remanded to him to correct and for him to determine if he will modify, since he can.

An additional reason to remand for this purpose is the fact that we have an Iowa plaintiff attempting to obtain relief from a South Dakota defendant and it would be extremely inequitable to require her to return to the original state, Minnesota, for the purpose of obtaining a judgment, and then to require her to return to South Dakota to enforce that judgment against the South Dakota resident.

4.Appellate attorney’s fees.

In consideration of the various factors I would award Gloria appellate attorney’s fees of $1,000. Storm v. Storm, 400 N.W.2d 457 (S.D.1987).

5.Motion to strike.

I would grant Gloria’s motion to strike Exhibits C and D because they were produced and obtained ex parte after Judge Berndt’s memorandum opinion was issued.

*367Accordingly, I would dissent from the majority opinion.

I am authorized to state that WUEST, C.J., joins in this dissent.

The trial court and the majority have misread, the Restatement. Section 109 is a permissive grant of power to the second court. Although the second court is not obligated to enforce a modifiable judgment, it is free to do so. Moreover, as comment c explains, the second court is as free to modify the judgment as is the original court.