Helgesson v. Helgesson
| Decision Date | 28 June 1961 |
| Docket Number | Civ. A. No. 60-525. |
| Citation | 196 F. Supp. 42 |
| Parties | Jeanne HELGESSON, Plaintiff, v. Uno HELGESSON, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Sydney Berkman, Boston, Mass., for plaintiff.
Edward E. Cohen, Boston, Mass., for defendant.
The plaintiff, a citizen of California, brings this action against the defendant, her former husband, now a citizen of Massachusetts, to recover alimony due under a divorce judgment rendered by a California court, and now moves for summary judgment under Fed.Rules Civ. Proc., rule 56, 28 U.S.C.
In March 1953 the plaintiff brought suit for divorce against the defendant in the Superior Court of the State of California in and for the County of Alameda. The defendant appeared generally and filed an answer together with a cross-complaint for divorce against the plaintiff. It is not disputed that both parties were at that time domiciled in California. While that action was pending, the plaintiff, on August 27, 1953, was served in California with process requiring her to answer to actions for divorce and annulment brought against her by the defendant in the First Judicial District Court of the State of Nevada in and for the County of Ormsby. The plaintiff did not appear, or file any pleading, or take any other action that subjected her to the jurisdiction of the Nevada court. The next day, August 28, the defendant filed an amended answer and cross-complaint in the California proceeding. This pleading, signed and sworn to by the defendant's attorney on August 28, 1953, and the original answer and cross-complaint, signed and sworn to by the defendant himself on June 17, 1953, and filed on June 22, 1953, contained the allegation "that the plaintiff and defendant were married in the City of Santa Cruz on the 14th day of December, 1946, and ever since have been and now are husband and wife." In the original and in the amended cross-complaint the defendant prayed "that the bonds of matrimony heretofore and now existing between the plaintiff and defendant be forever dissolved and that an interlocutory decree and judgment of divorce be entered in favor of the defendant." The plaintiff, on September 1, 1953, filed in the California court a motion to advance her action for divorce for trial and attached thereto two affidavits informing the court of the two actions filed by the defendant in Nevada and stating among other things that the defendant had been and was then a resident of California and was not a resident of Nevada as he had alleged in his actions. The Nevada court, on September 18, 1953, entered a default judgment annulling the marriage. The California court heard the plaintiff's action on September 28 and 29, 1953. The defendant's cross-complaint was dismissed. Both parties were represented by counsel and evidence was introduced on behalf of each. The Court found for the plaintiff and granted her an interlocutory judgment of divorce on September 29, 1953, on the ground of extreme cruelty. The interlocutory judgment was formally entered on October 15, 1953. The judgment granted custody of the minor child to the plaintiff and ordered the defendant to pay the plaintiff $200 a month as alimony and $150 a month for the support of the minor child. The judgment further provided for the distribution of the real and personal community property of the parties. No appeal having been taken from the interlocutory judgment and no motion for a new trial having been made, the California court, a year later, on October 18, 1954, granted the plaintiff a final judgment of divorce which incorporated all the terms of the interlocutory judgment. This judgment has never been vacated or modified.
In 1954 the plaintiff filed a petition against the defendant under Mass.G.L. c. 208, § 35, in the Middlesex Probate Court, Commonwealth of Massachusetts, seeking to hold the defendant in contempt for failure to comply with the California judgment. The petition was dismissed by the Probate Court on a finding that the defendant's failure to obey was not contemptuous since he was paying all that he could in fact afford.
On October 14, 1955, the plaintiff brought suit against the defendant in this Court for unpaid alimony that had accrued up to that date under the terms of the California judgment. No mention was made of the Nevada cases by either party. The dismissal of the plaintiff's petition by the Middlesex Probate Court was considered by this Court and held to be no bar to recovery by the plaintiff on the California judgment. The plaintiff's motion for summary judgment was granted. Helgesson v. Helgesson, D.C. Mass., C.A. 55-923-F.
In February 1956 the plaintiff filed a petition against the defendant in the Third District Court of Eastern Middlesex, Commonwealth of Massachusetts, under the uniform reciprocal enforcement of support act, Mass.G.L. c. 273A. This proceeding was in effect a continuation of one previously brought under the same act in the Middlesex Probate Court. See, Helgesson v. Helgesson, supra. The Third District Court found that the plaintiff was not "in need of or entitled to support" but ordered the defendant to pay the plaintiff for the support of the minor child "an additional sum of $50 each month, the payment to total $200 monthly."
In July 1960 the plaintiff brought the present action to recover unpaid alimony installments that have accrued under the California judgment from October 1955 through June 1960.
The plaintiff admits that the defendant has paid her all the money due for the support of the minor child. It is conceded, however, that the defendant has not paid the plaintiff any alimony since September 30, 1955. The alimony installments which have accrued under the California judgment from that date to July 21, 1960, when the complaint in this action was filed, total $11,600.
The defendant resists the plaintiff's claim on two grounds: (1) The California judgment "cannot have full force and effect nor be recognized by this Court" because of the prior judgment of annulment granted to the defendant by the Nevada court; (2) the plaintiff by "proceedings brought in the Massachusetts Probate Court and further proceedings brought in the Third District Court of Eastern Middlesex * * * made an election to submit to the jurisdiction of our Massachusetts Court."
The California judgment was rendered by a court having jurisdiction of the subject matter and personal jurisdiction over the defendant. The defendant has made no showing that the California judgment could be successfully attacked in California on the basis of the...
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