Berry v. Berry, 5883.

• Decision Date: 16 January 1931
• Docket Number: No. 5883.,5883.
• Citation: 234 N.W. 520,60 N.D. 353
• Parties: BERRY v. BERRY.
• Court: North Dakota Supreme Court

60 N.D. 353

234 N.W. 520

BERRY

v.BERRY.

No. 5883.

Supreme Court of North Dakota.

Jan. 16, 1931.

Syllabus by the Court.

Where a party to an action asks that the judgment and decree of the court be vacated and set aside on the ground the court had no jurisdiction over the person of the defendant, but at the same time and in the same application asks the court to modify such judgment and decree in certain particulars to the advantage of the defendant, the defendant by such application submits to the jurisdiction of the court, and, when the defendant does not ask for leave to answer, it is proper for the court to refuse to vacate and set aside the judgment on the grounds specified.

Syllabus by the Court.

Where the record in the case shows a decree of divorce was granted to the plaintiff and he was given custody of the child of the union, and thereafter the defendant asks the court to transfer the custody of the child from the plaintiff to the defendant, the trial court does not abuse its discretion in refusing to modify the decree in this respect, where the record shows the defendant was a nonresident of the state at the time the decree of divorce was granted, and has been such ever since, that the plaintiff and the child are no longer residents of this state, and the opposing affidavit furnished by the plaintiff, if believed by the trial court, is sufficient basis for leaving the child with the plaintiff.

Appeal from District Court, Hettinger County; Frank T. Lembke, Judge.

Action by J. A. Berry against Freda Berry for divorce. After a decree of divorce was entered, the court refused defendant's application to set aside the decree and refused to modify the judgment giving defendant custody of the child, and defendant appeals.

Affirmed.Kelly & MacMahon, of Tacoma, Wash., and Jacobsen & Murray, of Mott, for appellant.

H. A. Mackoff, of Dickinson, for respondent.

BURR, J.

In June of 1927 plaintiff commenced this action for divorce, and the record in the case shows this admission of service signed by the defendant: “Due and personal service of the summons and complaint in the above entitled matter is hereby admitted this 18th day of June, 1927, by delivery of copy at Havelock, North Dakota.”

This signature of the defendant is witnessed by Mrs. Mildred Crane and H. M. Whitney. While the record in this matter is not specific, we gather from it, nevertheless, that the H. M. Whitney, who signed as witness, is now the husband of the defendant.

The action was not brought on for trial until October, 1927. A decree of divorce was obtained in November, 1927, and plaintiff was given the custody of the child, a boy 12 years of age, who was living with the father at this time.

It appears from the record that the defendant, at that time and for some time previous thereto, was a resident of Tacoma, Wash.

The defendant wrote to the plaintiff's counsel in August, 1927, as follows: “I would like to know if Mr. James Berry was granted a decree of divorce. If so would you please send me a reply by return mail as it would help matters a great deal when two people are so far away from one another either not caring what the other does so I have not heard a word about it for a long time.”

A few days thereafter this lawyer wrote her to the effect that the case would be heard about the middle of October. The defendant retained this reply, and in February, 1928, sent it back to plaintiff's counsel with a written inquiry thereon as follows: “I would like to know if this divorce was granted last year as I did not get a notice if it was. Will you kindly write and let me know.”

Plaintiff in his affidavit says that in June, 1928, defendant married Harry Whitney-her third venture, she having been divorced before she married plaintiff-and she does not dispute the statement. Thus we see why she was anxious to learn if a decree of divorce had been granted. So far as the record shows, the defendant, ever since this third marriage, has been living with the said Whitney,and is now so living with him as his wife.

In June of 1930 the defendant, styling herself “Freda Whitney, formerly Freda Berry,” made an affidavit in support of a motion for “an order vacating and modifying the decree in the above entitled action with reference to the custody of the child of said parties, Walter Berry, and with reference to alimony and that the defendant will at said time ask for custody and possession of said child, together with alimony, including back alimony at the rate of $50.00 a month, together with all the relief in the premises which may be just and equitable. The above motion will be based on all the records and files in the action, including the affidavit of the defendant hereto attached”-and signed the affidavit as “Freda Whitney (Berry.)” The motion and affidavit were served upon the plaintiff in the state of Washington, and it is conceded upon this argument that neither the plaintiff nor the child is now, nor was at the time of making this motion, a resident of North Dakota. The reasons assigned for vacating or modifying the decree of divorce are that, although she admitted service of the summons and complaint for the purpose of facilitating the divorce proceedings, specifying this state as the place of service, yet the summons and complaint were in fact mailed to her in Washington, and it was there she admitted service, and not at Havelock. She further claims that the plaintiff, at the time of the divorce proceedings, was living in North Dakota and was employed as a railroad telegraph operator; that prior thereto the parties were living in Washington, but the plaintiff got employment in North Dakota, and it was agreed he was to obtain a divorce upon the ground of desertion; that she was not to contest this proceeding, and it was agreed she was to have the child every other year, and plaintiff would pay her $40 per month for support of the child during the time; that the plaintiff did not live up to this agreement, but obtained the custody of the child for himself; that sh...