Johnston v. Johnston

• Court: Minnesota Supreme Court
• Writing for the Court: ROGOSHESKE
• Citation: Johnston v. Johnston, 280 Minn. 81, 158 N.W.2d 249 (Minn. 1968)
• Decision Date: 05 April 1968
• Docket Number: No. 40568,40568
• Parties: Raymond F. JOHNSTON, Jr., Respondent, v. Jean G. JOHNSTON, Appellant.

Page 249

158 N.W.2d 249

280 Minn. 81

Raymond F. JOHNSTON, Jr., Respondent, v. Jean G. JOHNSTON, Appellant.

No. 40568.

Supreme Court of Minnesota.

April 5, 1968.

Syllabus by the Court

1. Where, in an action for a default divorce based upon a stipulation between the parties, the facts could support a finding by the trial court of fraud by the plaintiff-husband in obtaining the divorce by violating the express terms of the stipulation, it is not obligatory on this court on review of such an equitable proceeding to vacate the divorce decree in its entirety in the face of the trial court's finding of mere 'excusable neglect' on the part of defendant-wife.

2. The trial court had jurisdiction to grant a default divorce within 29 days after service of the summons and complaint since Minn.St. 518.12 merely fixes the time to answer and is not jurisdictional.

3. Where the plaintiff who obtained a default divorce thereafter marries an innocent third party and upon the motion of the defendant the decree is subsequently attacked for fraud of the plaintiff in obtaining it, the trial court's refusal to vacate the decree in its entirety does not under the circumstances of this case constitute an abuse of discretion.

Charles A. Cox, Minneapolis, for appellant.

Lindquist, Magnuson & Glennon, Minneapolis, for respondent.

OPINION

ROGOSHESKE, Justice.

Defendant appeals from an order partially denying a motion to vacate a divorce decree for fraud. The order vacated only those portions of the decree relating to support, alimony, and division of the property, and set these issues for trial in Dakota County.

The action for divorce by plaintiff-husband against defendant-wife was commenced on June 17, 1965, by service of the summons and complaint upon defendant by plaintiff's attorney. Service was made within minutes after a conference between the parties and plaintiff's attorney at which the parties executed a 'written stipulation' which established their agreement to 'separate legally' and, '(i)n the event that a legal separation does not work out,' set forth their agreement as to custody, support, alimony, and a division of property should a default divorce be granted to plaintiff. An absolute divorce decree was obtained by plaintiff on July 16, the 29th day following commencement of the action. It was submitted as a default matter pursuant to the stipulation.

Thereafter, defendant, claiming that she was unaware of the divorce decree until January 6, 1966, moved to vacate the default judgment. Her motion, set for hearing on April 1, 1966, was served by mail upon plaintiff's attorney on March 15. Before the motion was heard, plaintiff remarried on March 19, having obtained a license therefor on March 2. This remarriage, he claims, was prior to any knowledge of defendant's motion. Following a comprehensive hearing on April 1, at which affidavits and oral testimony of the parties and their witnesses were submitted, the court entered findings on September 1, 1966, supporting its order setting aside all portions of the decree except that part granting plaintiff a divorce. Included are findings to the effect that plaintiff resided in Dakota County when the action was instituted; that defendant had no actual knowledge of the decree until January 6, 1966; that plaintiff's remarriage was without prior knowledge of defendant's motion; and that defendant misunderstood the nature of the proceeding and should be relieved of the effect of the decree with respect to support, alimony, and a division of the property.

On this appeal, defendant makes three claims: (1) The decree of divorce was obtained by fraud and therefore must be vacated in its entirety; (2) the trial court lacked jurisdiction to grant a default divorce on the 29th day following commencement of the action; and (3) the action was improperly venued in Dakota County and further proceedings should be venued in Hennepin County.

Upon oral argument, it was revealed that the marriage between plaintiff and defendant is now dissolved beyond redemption. It was conceded that defendant does not seriously assert a desire to defend for the purpose of seeking a reconciliation with her former husband. What she seeks is an opportunity to litigate the questions of support, alimony, and property division unhampered by the force of the divorce decree. Disclaiming any malicious motives toward plaintiff and his former attorney, she argues that unless the decree is vacated in its entirety she will not be able to obtain as favorable a redetermination of these allowances as would be possible were the default decree to govern the issue of fault. Plaintiff's present counsel, with commendable candor, expresses plaintiff's willingness to litigate the question of culpability upon further proceedings so far as evidence relating to that issue might affect a determination of the issues restored by the order of the trial court.

In view of these concessions, the undisputed innocence of any wrongdoing on the part of plaintiff's second wife, and other circumstances of the case, including a careful review of the evidence upon which the default decree was based, we are not persuaded that the disposition ordered by the trial court was unwarranted. We reach this conclusion despite the many inferences which could be drawn from this record that plaintiff and, particularly, his former counsel engaged in reprehensible conduct which would not only support a finding of fraud upon the administration of justice but which reflects discredit upon the high standards of professional conduct required of a member of the bar. However, the question of whether to set aside a final decree of divorce remains one peculiarly within the discretion of the trial court under the circumstances of each case. Berg v. Berg, 227 Minn. 173, 34 N.W.2d 722.

At the time of the hearing on the complaint below, the parties were both 38 years old. They had two children, Ruth, born in 1953, and Darryl, born in 1957. In accordance with the stipulation, custody of the two children was originally placed with defendant, but the son is now in the custody of plaintiff and his present wife. The proceeding resulting in the default decree originated in June 1965 when plaintiff, having determined that living with defendant had become intolerable (principally because of the manner in which she maintained their home), informed defendant that he was leaving her, removed himself from their home, and began his attempts to obtain her agreement to a stipulation for a default divorce. Because of her unwillingness to meet at plaintiff's attorney's office, they arranged a meeting at the Sheraton-Ritz Hotel in Minneapolis. At that time, because of defendant's insistence, a stipulation which had been prepared before the meeting was modified to provide that the parties would agree to live separately and apart 'in order to give both parties an opportunity to re-evaluate their marriage.' As thus modified, the stipulation, which referred to the parties as plaintiff and defendant and which they signed, provided:

'In the event that a legal separation does not work out between the parties; then the defendant does hereby consent to an action to be brought by the plaintiff for a legal separation and/or an absolute divorce to be heard as a default matter * * *.'

In that event, the stipulation then provided that the plaintiff would pay $200 a month for the support of the children;...