Gessell v. Jones, 11261
| Decision Date | 10 May 1967 |
| Docket Number | No. 11261,11261 |
| Citation | 149 Mont. 418,427 P.2d 295 |
| Parties | Elizabeth F. GESSELL, Plaintiff and Appellant, v. Raymond J. JONES, Defendant and Respondent. |
| Court | Montana Supreme Court |
Tipp, Hoven & Brault, Raymond W. Brault (argued), Missoula, for appellant.
Lucas & Jardine, Charles A. Jardine (argued), Miles City, for respondent.
Action on a contract for the payment of child support.
On May 3, 1959, Raymond J. Jones (hereinafter called Jones) filed a divorce action against Elizabeth F. Jones (now Gessell and hereinafter called Gessell) in the district court of Custer County, Montana.
On September 30, 1959, the parties entered into a 'seperation and property agreement' wherein Jones agreed to pay Gessell the sum of $200 per month for the support of the three children of the marriage in addition to the sum of $100 each August for the purchase of school clothing.
A decree of divorce was granted October 14, 1959, providing that Jones should pay $200 per month for child support. In that action the divorce decree contained an express recognition of the agreement between the parties but 'neither approved or disapproved' of it.
Jones petitioned the court April 18, 1961, for a modification of the decree to require payment of $140 per month for child support. On June 2, 1961, both parties stipulated through their respective counsel that the support payments should be reduced to $175 per month and the decree was so modified.
A second modification was made July 3, 1964, after a hearing with both parties being represented by their respective counsel wherein the support payments were further reduced to $135 per month.
On January 31, 1966, Gessell brought an action for $3,430.00 based on the claim that Jones owed her the difference between the sum of the support payments he had made under the various decrees and the sum of the payments required by the agreement. The district court decided that this action was barred by the doctrine of collateral estoppel raised by the previous modifications and for that reason entered an order granting Jones's motion for summary judgment under Rule 56(b) M.R.Civ.P.
The single question determinative of this appeal is whether parties named in a divorce decree may enforce a prior contract for the support of minor children of the marriage when the court assuming jurisdiction to grant the divorce has subsequently decreed provisions for child support differing from those of the contract? The doctrine of collateral estoppel as applied by the district court to support its order of summary judgment provides the answer to this question.
Section 21-138, R.C.M.1947, provides: 'In action for divorce the court or judge may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.' (Emphasis supplied.) When the provisions for the support of the children are made the subject to...
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...County v. Wilkinson, 111 Ariz. 530, 534 P.2d 735 (1975); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973); Gessell v. Jones, 149 Mont. 418, 427 P.2d 295 (1967); King v. City of Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974); 46 Am.Jur.2d Judgments § 415 (1969).Although the Idaho court r......
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Brault v. Smith
...Court has enunciated the principles of res judicata, including collateral estoppel, on numerous occasions. In Gessel v. Jones (1967), 149 Mont. 418, 421, 427 P.2d 295, 296, we "... res judicata bars the same parties from relitigating the same cause of action while collateral estoppel bars t......
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Grosz v. Grosz, s. 4137
...852, 854; Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49, 52; Tyler v. Tyler, 203 Kan. 565, 455 P.2d 538, 544-545; Gessell v. Jones, 149 Mont. 418, 427 P.2d 295, 296.2 See Piper v. Piper, Wyo., 487 P.2d 1062, 1063; and Young v. Young, Wyo., 472 P.2d 784, ...
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Stapleton v. First Sec. Bank
...her recovery. She argues that under either of two suggested tests, collateral estoppel does not apply. We agree. In Gessell v. Jones (1967), 149 Mont. 418, 427 P.2d 295, we " 'Collateral estoppel' ... may be considered as a branch of the doctrine of res judicata but is distinguishable from ......