Brockel v. Brockel

• Citation: 128 N.W.2d 558,80 S.D. 547
• Decision Date: 20 May 1964
• Docket Number: No. 10068,10068
• Parties: Karen BROCKEL, Plaintiff and Respondent, v. Morgan A. BROCKEL, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 558

128 N.W.2d 558

80 S.D. 547

Karen BROCKEL, Plaintiff and Respondent, v. Morgan A. BROCKEL, Defendant and Appellant.

No. 10068.

Supreme Court of South Dakota.

May 20, 1964.

Morris Myers, Aberdeen, for defendant and appellant.

Agor, Siegel, Barnett & Schutz, Aberdeen, for plaintiff and respondent.

HOMEYER, Judge.

This is an appeal from a judgment and order which amoung other things denied defendant's motion to vacate a default decree granting plaintiff a divorce and to answer in the action.

Defendant contends (1) he had entered what amounted to an appearance in the action and because the default decree was entered without notice to him as provided by SDC 1960 Supp. 33.1707(2), it was a nullity and should have been set aside; and (2) since subsequent to the commencement of the action the parties resumed marital relations, the cause of action abated and because no summons was served with the amended complaint the court was without jurisdiction to grant the divorce.

Plaintiff resisted the motion both in the trial court and in this court by ignoring defendant's contentions and affirmatively urging that irrespective of any irregularities or defects in obtaining the default decree, either procedural or jurisdictional, defendant is estopped and guilty of laches and should be denied relief. The trial court found defendant had accepted the benefits and fruits of the default judgment entered against him and was estopped from attacking it, and was guilty of laches in moving to set it aside.

Before discussing the correctness of the trial court's holding, we digress to briefly comment on defendant's principal contentions. This court has held where a general appearance has been entered, the failure to give the six days' notice required by the statute was an irregularity and a default judgment entered without such notice was voidable. Peterson v. McMillan, 70 S.D. 56, 14 N.W.2d 97. This seems to be the generally accepted position although courts are not in entire accord. Federal Land Bank of St. Paul v. Olson, 239 Wis. 448, 1 N.W.2d 752; 49 C.J.S. Judgments Sec. 208c; 30A Am.Jur., Judgments, Sec. 207. See annotation 51 A.L.R.2d 837.

As to defendant's second contention, SDC 1960 Supp. 33.0914 permits one amendment to a pleading as a matter of course before a responsive pleading is served. Likewise under SDC 14.0716, 14.0717 a resumption of marital relations in itself does not operate as an abandonment of the cause of action, in the absence of an express agreement to condone, and may be revived. The precise question argued has not been passed upon by this court. Other courts are not in agreement. Some hold the cause of action abates. Collins v. Collins, 194 La. 446, 193 So. 702; Chester v. Chester, 76 Cal.App.2d 265, 172 P.2d 924. Some hold, and what appears to be a majority, that it does not. Egidi v. Egidi, 37 R.I. 481, 93 A. 908, Ann.Cas.1918A, 648; Harn v. Harn, 155 Ga. 502, 117 S.E. 383; Brewer v. Brewer, 205 Ga. 759, 55 S.E.2d 147; Payne v. Payne, 157 Or. 428, 72 P.2d 536; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564. Still others hold plaintiff may proceed with the divorce action, but the condonation and revocation should be set forth by supplemental petition or amended complaint. Huffine v. Huffine, Com.Pl., 74 N.E.2d 764; Eicher v. Eicher, 148 Neb. 173, 26 N.W.2d 808; 17 Am.Jur., Divorce and Separation, Sec. 227; 27A C.J.S. Divorce Sec. 62b. See annotation 32 A.L.R.2d 107.

The question presented is whether defendant is barred by laches or estoppel from challenging the decree. The parties were married in 1954. On September 18, 1961, plaintiff sued for divorce alleging cruelty and defendant was personally served with process. He appeared in person and by counsel at a pendente lite hearing for temporary allowances on September 25th. On or about October 14th, the parties resumed cohabitation and marital relations. No order of dismissal of the action was entered. On January 26, 1962, plaintiff served upon defendant an amended complaint and supporting papers for temporary allowances. The amended complaint is in substantial conformity with the original complaint except for an additional allegation setting forth resumption of cohabitation conditioned upon discontinuance of the prior marital misconduct and defendant's noncompliance. A second pendente lite hearing was held on February 2nd, at which defendant appeared in person. On February 6th an order granting temporary allowances was served on defendant. On March 2nd a decree of divorce was entered upon an affidavit of default by her then counsel. The decree also granted plaintiff custody of the seven-year-old child of the parties, provided for child support and vested title to a negligible amount of property in each of the parties. On March 13th defendant admitted service on the judgment.

Defendant remarried on August 4, 1962. On August 31st he was served with an order to show cause in contempt proceedings for failure to make the support payments required by the divorce decree. In the same proceeding plaintiff sought to amend the decree pertaining to child visitation rights. Defendant resisted the application by filing an affidavit in which, among other things, he indicated knowledge plaintiff was contemplating remarriage. His counsel also presented a proposed order to reduce child support payments. After almost three months' delay, the controverted matters were finally heard on November 30th and the court entered its decision and judgment relieving defendant from child support payments prior to July 9th, but held him in contempt for failure to make payments after that date. On December 3rd defendant was served with the decision and judgment. On December 6th an order was entered purging defendant of contempt.

On January 17, 1963, defendant filed a motion to set aside the default decree of divorce entered on March 2, 1962, and to permit him to answer, or in the alternative, to reduce the child support payments. An affidavit of merits was filed with the motion in which he claimed adulterous conduct of plaintiff prior to the commencement of the divorce action, claimed the support payments were excessive, and said he wanted to contest for child custody. Plaintiff filed an answering affidavit in which she stated she had remarried on September 15, 1962, that defendant was in arrears $720 in child support payments, and by counter motion asked defendant's motion be denied and he be held in contempt for failing to make support payments. The motions were heard on February 4th. The record reveals the following colloquy between counsel at such hearing:

'BY MR. BARNETT: I think that the record ought to further show that it is the plaintiff's position here that by remarriage, both of the parties have necessarily given final recognition to this judgment and final decree of divorce, and that it further emphasizes the merits of the plaintiff's equitable defenses to defendant's showing.

'BY MR. MYERS: The record should also show that the defendant would ask relief only as against those portions of the judgment entered that did not relate to the bonds of matrimony; all except, that is, dissolving the marriage between these parties.'

In view of this statement of defendant's counsel it is difficult to understand the nature of this appeal. Following this verbal exchange the court orally announced its denial of defendant motion to vacate and defendant's counsel then withdrew his motion to reduce child support payments. On February 6th findings, conclusions, judgment and order were entered denying def...