Bahr v. Bahr

Citation180 N.W.2d 465,85 S.D. 240
Decision Date21 October 1970
Docket NumberNo. 10747,10747
PartiesRuth Louise BAHR, Plaintiff and Respondent, v. Edwin Henry BAHR, Defendant and Appellant.
CourtSupreme Court of South Dakota

Morris Myers, Aberdeen, for defendant and appellant.

Heidepriem, Widmayer & Zeigler, Miller, for plaintiff and respondent.

HOMEYER, Judge.

This appeal is from an order granting summary judgment in adopting a foreign decree of divorce. 1

From the record before us it appears the parties were divorced by a decree of the Circuit Court of Clatsop County, Oregon, on November 25, 1964. The plaintiff-wife was awarded custody of three minor children, and the defendant-husband was required to pay $50 per month as support money for each child. The foreign decree also required the defendant to pay to plaintiff $2500 within three years of the date thereof 2 and to her attorney $500 as his fee and costs within 90 days. Other provisions are not here material.

Sometime after the divorce the parties moved to South Dakota, plaintiff living in Aberdeen and defendant in Miller. Proceedings to enforce the child custody and support provisions of the foreign decree were started in Brown County, South Dakota, on January 17, 1966 and in Hand County, South Dakota, on June 14, 1966. On March 9, 1968, the parties stipulated to dismiss the Hand County proceeding and on the following day the court entered an order of dismissal. 3

The present action was commenced on August 23, 1968, when defendant was served with summons, complaint, and other papers purposed to regain custody of two of the minor children and enforce other provisions of the foreign divorce decree, a copy of which was attached to the complaint. 4 At a show cause hearing held in this action on September 4, 1968, defendant was ordered to deliver immediate custody of the two younger children to plaintiff. She was ordered not to remove the children from South Dakota until she posted a bond of $1,000 conditioned on the return of the children to the state in response to any order of this court. Such bond was furnished and approved by the court on September 13, 1968.

The complaint alleges defendant's failure to pay child support, but does not set forth any specific sum as owed. It also alleges plaintiff paid the attorney's fee which defendant was required to pay and she has not been reimbursed, and that he has paid no part of the $2500 which he was required to pay her under the decree. In her prayer for relief plaintiff asks that the 'amended decree of divorce from Clatsop County, Oregon be made the decree of this Court with the same force, effect and validity, and be enforced against the defendant by this Court in the same manner as though originally rendered herein' and he 'be ordered to pay child support in arrears and other sums required by the amended decree and future child support as provided therein.'

By answer and amended answer, defendant pleaded the defense of res judicata by reason of the Brown County and Hand County proceedings mentioned supra and a release from liability and a satisfaction of the Oregon judgment and decree. 5 He also alleged the South Dakota court was without jurisdiction over the two younger children since they were with their mother in Arizona when the amended answer was filed.

In our opinion the trial court erred when it granted plaintiff's motion for summary judgment. We are satisfied the record before the trial court showed there were genuine issues of material facts to be decided on portions of the foreign decree of divorce. SDCL 15--6--56(c). These matters should have been heard and determined before the foreign decree was adopted and made effective as a decree of the South Dakota court.

A foreign decree of divorce containing provisions for payment of money for support of a wife and children or in settlement of property rights may be the basis for a decree in this state and enforced by all means at the command of the court for the enforcement of such decrees. Sorenson v. Spence, 65 S.D. 134, 272 N.W. 179; Cousineau v. Cousineau, 155 Or. 184, 63 P.2d 897, 109 A.L.R. 643. Nevertheless, where it appears there are defenses available to such decree or a portion thereof which are generally applicable to suits on foreign judgments or decrees, such matters should be heard and determined before the judgment or decree is made effective and becomes a judgment in this state.

Generally the only defenses the defendant can make to a judgment obtained in another state when the judgment is sued upon in this state are that the court did not have jurisdiction of the person or the subject matter, Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Tilt v. Kelsey, 207 U.S. 43, 28 S.Ct. 1, 52 L.Ed. 95, or that it was fraudulently procured, Lee v. Carroll, La.App., 146 So.2d 242; Britton v. Gannon, Okl., 285 P.2d 407, 55 A.L.R.2d 667, cert. den., 350 U.S. 886, 76 S.Ct. 140, 100 L.Ed. 781, or that the judgment has been paid, satisfied, or released. 50 C.J.S. Judgments § 874, p. 449; Friedland v. Isquith, 106 N.J.Eq. 344, 150 A. 840; Eaton v. Hasty, 6 Neb. 419; Keeler v. Elston, 22 Neb. 310, 34 N.W. 891. No defense may be set up which goes to the merits of the original controversy, or which might have been interposed in the original action. Picking v. Local Loan Co., 185 Md. 253, 44 A.2d 462. Payment made subsequent to entry of a foreign judgment is not foreclosed under the full faith and credit clause of the Constitution of the United States, Art. 4, § 1, since it could not have been litigated in the original action. 6 Lennon v. Cohen, 264 Mass. 414, 163 N.E. 63.

We see no merit in plaintiff's argument that summary judgment should be held proper since the matters urged as affirmative defenses could be asserted in proceedings to enforce the judgment. Assuming without deciding that this is so, defendant should not be required to wait for plaintiff to initiate enforcement proceedings to determine whether or not he remains indebted on the judgment, or the extent thereof. 7

We refer briefly to other matters argued in the briefs since they may arise when the action is tried on its merits. We see nothing in defendant's claims of res judicata. No complaint was ever filed in the...

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10 cases
  • Red Fox v. Hettich
    • United States
    • South Dakota Supreme Court
    • January 13, 1993
    ...before recognizing other foreign judgments, Baldwin v. Heinold Commodities, Inc., 363 N.W.2d 191, 194 (S.D.1985); Bahr v. Bahr, 85 S.D. 240, 244, 180 N.W.2d 465, 467 (1970); see also SDCL 15-16A-1 to 10 (Uniform Enforcement of Foreign Judgments Act), as do federal courts. Nevada v. Hall, 44......
  • Guinness PLC v. Ward
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 10, 1992
    ...(emphasis added); accord Sun First Nat. Bank v. Gainsville, 75 LTD., 155 Ga.App. 70, 270 S.E.2d 293, 296 (1980); Bahr v. Bahr, 85 S.D. 240, 180 N.W.2d 465, 467 (1970); Crescent Hat Co. v. Chizik, 223 N.C. 371, 26 S.E.2d 871, 872 We believe that the factors in this case which have caused con......
  • Oman v. Oman
    • United States
    • South Dakota Supreme Court
    • July 20, 2005
    ...176 N.W.2d 51, 53 (1970). This includes a lump-sum as alimony. Id. See also Steffens v. Peterson, 503 N.W.2d 254, 259 (S.D.1993); Bahr v. Bahr, 85 S.D. 240, 246 n7, 180 N.W.2d 465, 468 n7 (1970). We have also determined that where alimony is actually provided as part of the property settlem......
  • Parker v. Parker, 29377
    • United States
    • Georgia Supreme Court
    • January 7, 1975
    ...Guercia (Tex.Civ.App.), 239 S.W.2d 169 (1951); Maryland in McCabe v. McCabe, 210 Md. 308, 123 A.2d 447 (1956); South Dakota in Bahr v. Bahr, 85 S.Dak. 240, 180 N.W.2d 465 (1970); and, South Carolina in Johnson v. Johnson, 194 S.C. 115, 8 S.E.2d 351 (1940), which was reaffirmed in Bennett v.......
  • Request a trial to view additional results

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