Corban v. Corban, 12317
| Decision Date | 27 December 1972 |
| Docket Number | No. 12317,12317 |
| Parties | Albert CORBAN, Plaintiff and Appellant, v. Lenore CORBAN, Defendant and Respondent. |
| Court | Montana Supreme Court |
Tipp, Hoven & Brault, Missoula, Vernon B. Hoven (argued), Missoula, for plaintiff-appellant.
Robert L. Deschamps, III, Missoula, M. Gene McLatchy (argued), Missoula, for defendant-respondent.
Plaintiff husband secured a divorce from defendant wife in March, 1970 in the district court of Missoula County. About eighteen months later, defendant wife filed a petition in the same cause seeking an adjudication of property rights which had not been sought by either party or adjudicated in the divorce proceeding. Following a hearing, the district court awarded defendant wife the sum of $5,000 as her share of the family assets. From this judgment, plaintiff husband appeals.
Albert Corban and Lenore Corban were married in Polson, Montana in 1940. During the course of their marriage they acquired the following property: Lots on and near Woods Bay on Flathead Lake amounting to one and one-half to two acres, a logging truck, household furniture, antique cars, art equipment, and miscellaneous personal property.
On February 9, 1970, Albert filed an action for divorce against Lenore. The complaint simply sought a divorce; it did not seek an adjudication of property rights. Lenore signed an acceptance of service, but did not appear in the action. Her default was entered thereafter and Albert was granted an absolute divorce from Lenore on March 16, 1970 by the district court of Missoula County. The divorce decree was silent concerning property rights.
On October 5, 1971, Lenore filed a petition in the divorce proceeding seeking a hearing to determine a property settlement, or in the alternative support money and attorney's fees. Albert filed a motion to quash but before it was heard Lenore filed an amended petition. In the amended petition Lenore claimed that at the time of the divorce she was physically and mentally ill and unable to defend herself; that in such condition she had fled the state and was living off the charity of strangers in California; that at the time she signed the acceptance of service in the divorce action she also signed a quit claim deed to the real estate on Flathead Lake upon Albert's promise that she would be financially taken care of and supported; and that she has never received any money or support from Albert except $1,000. Lenore also alleged that on her return to Montana in May, 1970, she discovered that Albert had secured a divorce and thereafter sought legal assistance from several attorneys eventually culminating in this petition of October 5, 1971 and the amended petition of November 19, 1971. She sought to vacate the default divorce, interpose an answer and counterclaim, and to have her legal rights adjudicated by the court.
A hearing was held on Lenore's amended petition. On December 9, 1971, the district court entered an order which, quoted in part, stated:
'The evidence presented does not warrant any setting aside of the default judgment; however, it does appear to the Court that the Defendant is entitled to have the Court determine whether or not the Defendant is entitled to any further share of the property acquired during the marriage.'
The district court set the property adjudication for hearing and ordered each party to file a complete inventory and accounting of the family assets as of the date the divorce complaint was filed.
The hearing was held thereafter and on April 27, 1972, the district court entered findings of fact, conclusions of law and judgment, awarding Lenore the sum of $5,000 cash 'as her share of the family assets'. Following denial of Albert's...
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