Fullen v. Fullen.

• Decision Date: 17 November 1915
• Docket Number: No. 1709.,1709.
• Parties: FULLENv.FULLEN.
• Court: New Mexico Supreme Court

21 N.M. 212

153 P. 294

FULLEN

v.FULLEN.

No. 1709.

Supreme Court of New Mexico.

Nov. 17, 1915.

Syllabus by the Court.

Sections 4179, 4180, 4229, Code 1915, interpreted, and held that an application for judgment is not a motion requiring five days' notice, and that where a cause has been submitted and taken under advisement, the parties are entitled to notice for no particular length of time, as to the form and substance of the judgment, so long as opportunity is afforded to be heard upon that subject, and to take exceptions to the findings and conclusions, and to propose others, so that their respective contentions may be fairly represented on the record.

It is a fundamental rule of appellate practice and procedure that an appellate court will consider only such questions as were raised in the court below. This rule has express statutory sanction in this jurisdiction. Section 4506, Code 1915.

Where there are two or more separate and independent causes of action in a given case, there may be as many separate and distinct final judgments therein.

In such a case, even in jurisdictions where terms of court are preserved, the lapse of the term will not deprive the court of jurisdiction of the cause, but simply of the judgment which was rendered during such term, if it was a final judgment.

In this jurisdiction, by reason of section 4185, Code 1915, there are no terms of court except for jury trials, and a judgment which disposes of all, or one or more, of the separate and independent causes of action in the case becomes a final judgment upon its rendition and entry, in the sense that the same passes from the further control of the court, and except a default judgment (section 4227, Code 1915) and an irregularly entered judgment (section 4230, Code 1915), and except for such purposes as all courts always retain control over their judgments.

No relief will be afforded in this court from findings of fact made by the trial court, which are supported by substantial evidence.

The matters mentioned in the seventh paragraph of the opinion require no decision of any question of law.

Where the court has found the necessity to exist for a provision for the support of minor children out of the property of the parties to a divorce proceeding, and where such provision is made in the decree, it is error to withhold from them the benefits of such provisions until their return to the jurisdiction, from which they have been clandestinely removed by the mother, when the withholding of such benefit is apparently, by way of punishment of the guilty mother. The measure of the infants' claims upon the court, and upon the funds set aside for them is their necessities, independent of any misconduct on the part of either party to the divorce proceedings.

Additional Syllabus by Editorial Staff.

A “final decree” is one which disposes of the case or a distinct branch thereof. It is one which either terminates the action itself, or decides some matter litigated by the parties, or operates to divest some right, in such manner as to put it out of the power of the court making the same after the expiration of the term to place the parties in their original condition.

Appeal from District Court, Chaves County; McClure, Judge.

Suit by Louis O. Fullen against Dorothy B. Fullen. From decree for plaintiff, defendant brings error. Affirmed.

A court has no jurisdiction over its judgments after entry thereof, except, under Code 1915, § 4227, in cases of defaults for 60 days, and under section 4230 in cases of irregularly entered judgments for one year.

W. W. Gatewood, of Roswell, for plaintiff in error.

O. O. Askren, of Roswell, and Renehan & Wright, of Santa Fé, for defendant in error.

PARKER, J.

This is a suit for divorce, partition of community property, the establishment of rights to separate property, and for the custody of minor children, in which defendant in error was plaintiff, and plaintiff in error was defendant. On July 1, 1912, an amended complaint was filed, charging cruel and inhuman treatment of plaintiff by defendant; alleging the adoption of a female child by plaintiff and defendant, and as the issue of the marriage the birth of a male child, who was then living; alleging the ownership of separate property by each spouse at the time of marriage and the accumulation of community property during the marriage. Plaintiff prayed an absolute divorce, for the disposition of the custody of the two children by the court, and for the settlement of the interests of the parties in the community property and the establishment of their respective rights in and to the separate property.

The defendant answered, denying the allegations of cruelty and, by way of counterclaim, charged plaintiff with various marital offenses; claimed to own practically all of the property of the parties; alleged her fitness to have the custody of the two children, and the plaintiff's unfitness for the same; and prayed for an absolute divorce, the custody of the children, and the establishment of her title to the property. The counterclaim was afterwards abandoned in so far as the prayer for divorce is concerned, and the defendant filed an amended answer to the complaint, in which she did not pray for a divorce. In this answer she denied the allegations in the complaint of cruelty. By way of new matter and recrimination in the answer, the defendant alleged that the plaintiff was an unfit person to have the custody of the children by reason of the facts that he had no affection for them, was a man of bad moral character, an habitual drunkard, an habitual frequenter of bawdyhouses, and was habitually given to adultery. In the answer the defendant, by way of recrimination, alleged, specifically, that the plaintiff had been guilty of adultery with a large number of women, naming them; that he had been guilty of cruelty to defendant in that he had, on certain specified occasions, violently and brutally assaulted and beaten defendant, and had instigated false accusations against her, causing her arrest and trial, and resulting in her being compelled to give a peace bond, and had reviled her, and had applied to her degrading, obscene, and shameful epithets, and had for the last year come to their home almost constantly in such a beastly state of intoxication as to render himself utterly intolerable to defendant; that he gambled habitually and on certain specified occasions had humiliated defendant by being publicly in company with prostitutes, and had neglected to support defendant according to his means, station in life, and ability, and that for more than one year last past he had been guilty of habitual drunkenness. The answer alleged that defendant was the owner of certain specified real and personal property in Eddy and Chaves counties, and prayed for the establishment of her title thereto, and alleged that the parties owned certain community property, one-half of which she demanded. Defendant further alleged that plaintiff was indebted to her in certain large sums of money loaned to, or converted by, him out of her separate property. Defendant prayed for the dismissal of plaintiff's complaint; for the custody of the two children; for alimony, both permanent and pendente lite, and for counsel fees; for the establishment of her separate property rights and her rights in the community property; and for the judgment against plaintiff for said sums of money so loaned or converted.

In the meantime, plaintiff had filed a reply to the counterclaim of defendant, and when the amended answer of defendant was permitted to be filed, it was agreed that this reply to the counterclaim should be taken and considered as a reply to the amended answer.

The plaintiff in his reply denies that he is an unfit person to have the custody of the two children, and specifically denies the acts and conduct alleged against him as reasons for his unfitness. He denies all acts of adultery charged against him. He denies the cruel treatment and failure to support, and habitual drunkenness charged against him. He denies the allegations of the answer as to the ownership of most of the property involved, and asks that his rights therein be established. He denies the loan to him of money by defendant, and the conversion by him of money received for the support of the girl child. By way of new matter and recrimination as reflecting upon the fitness of the defendant to have the custody of the two minor children, the plaintiff alleged that the defendant is a woman of erratic, violent, and uncertain temperament, unsettled as to her movements, moving constantly from place to place, making it impossible for the children to have the care and attention they require, and depriving them of a systematic and proper course of education; that defendant is a woman habitually addicted to the use of profane, indecent, and obscene language, indulging in outbursts of temper and using the most vulgar language, the same being done in the presence and hearing of said children; that defendant is a person habitually addicted to the excessive use of intoxicating liquors; that she is almost constantly under the influence of liquors or drugs; that on information and belief plaintiff states that the defendant is a person of unsound mind, and frequently threatened the life of the said children; that she is a person of extravagant and theatrical forms of speech and action, and delights in the creation of situations which would shock and appall the mind of an ordinary and refined person, but which she enjoys with much zest and relish, to wit, by exhibiting her person to apparent strangers whom she has met, perhaps, for the first time at some informal meeting in her home, apartment, or elsewhere; that she has frequently denied to plaintiff that plaintiff was the father of the infant male child, and has alleged that he was the child of one ______, of New York City; that she is what is commonly termed an...