Joyce v. Joyce, 86-309

• Decision Date: 23 September 1988
• Docket Number: No. 86-309,86-309
• Citation: 229 Neb. 831,429 N.W.2d 355
• Parties: David Lee JOYCE, Appellant, v. Teena JOYCE, Appellee.
• Court: Nebraska Supreme Court

Page 355

429 N.W.2d 355

229 Neb. 831

David Lee JOYCE, Appellant, v. Teena JOYCE, Appellee.

No. 86-309.

Supreme Court of Nebraska.

Sept. 23, 1988.

Syllabus by the Court

1. Foreign Judgments: Child Support. Under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq. (Reissue 1984), the court in the responding state may fix the support payment at a different amount than that specified by the judgment in the initiating state.

2. Foreign Judgments: Service of Process: Notice. Where a party in an action under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq. (Reissue 1984), is served personally with a summons and a copy of the petition in the case, and that party chooses not to file any pleading nor to enter an appearance in the case, and has not otherwise requested notice of hearing, notice of default hearing need not be given to such party. It would be an abuse of the trial court's discretion under such circumstances to set aside a decree, properly entered, on the sole basis that notice of hearing was not sent to the party in default of filing any pleading or entering an appearance in the case.

3. Judgments: Equity. Neb.Rev.Stat. § 25-2001 (Reissue 1985) is not the exclusive remedy for vacating a judgment after the term has expired. That statute is concurrent with an independent equity jurisdiction. To proceed in equity the litigant must show that he was without a remedy at law; more specifically, that § 25-2001 could not serve him.

4. Equity. Equity will not afford relief if the complainant has a remedy by statutory proceeding in the original action, and to be entitled to equitable relief a party must not have neglected to avail himself of the statutory remedy.

Timothy J. Doyle, Lincoln, for appellant.

Janice Lipovsky, Deputy Lancaster Co. Atty., for appellee.

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and BURKHARD, District Judge.

BURKHARD, District Judge.

Plaintiff, David Lee Joyce, filed suit in the district court for Lancaster County, Nebraska, against his former wife, defendant, Teena Joyce, seeking a new trial of issues decided by a default judgment in a case brought by Teena under the Nebraska Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq. (Reissue 1984) (URESA). David also sought relief from enforcement of the judgment, which was entered therein on December 31, 1979, and also asked for the vacating of said order.

Trial was held on September 12, 1985, and all issues were resolved against David in the district court's order of March 5, 1986, dismissing his petition. David has appealed the district court's ruling of March 5.

David is the father of Jayson Joyce, born in July 1977. On June 16, 1978, David and Teena, the mother of Jayson, were divorced by decree of the district court of Union County, Iowa. David was ordered to pay $75 per month for the support of Jayson.

David subsequently moved to Nebraska. On September 14, 1979, the aforementioned URESA petition was filed against him, seeking an order directing David to provide support for Jayson. Although summons and, apparently, a copy of the petition were personally served upon him on September 30, 1979, David filed no answer or any other pleading and made no appearance in the case. According to the findings in the March 5, 1986, order, notice of hearing to be held on December 26, 1979, at 8:50 a.m. on the URESA petition was served upon David by certified mail on November 28, 1979. However, both parties, in their briefs, state that notice of the December 26, 1979, hearing was mailed to David on December 21, 1979, a Friday, and received by him on December 26, 1979, but after the hearing had taken place. December 22, 23, and 25, 1979, were apparently not working days. David had been working in Utah for 5 weeks and had returned to Nebraska on Christmas Eve or Christmas Day.

David states that on December 26, 1979, after receiving the notice, he telephoned the Lancaster County courthouse (apparently the county attorney's office) and was told that the hearing had taken place, and there was nothing he could do about it. David says he was not told of the outcome of the hearing, and he made no inquiries at that time regarding the outcome of the hearing. On that same day, David called someone in Union County, Iowa, that had to do with sending notices about child support, and this person told David that she was not aware of any change in his child support obligation.

At the hearing on September 12, 1985, the court took judicial notice of the proceedings in the URESA hearing held on December 26, 1979. The evidence presented at the default hearing on December 26, 1979, before Judge Samuel Van Pelt indicated that Teena and Jayson required $221 per month for rent, food, clothing, utilities, transportation, and telephone. There were no monetary figures set forth for child care, medical expenses, and incidentals. Teena was receiving $275 per month in assistance from the welfare department. On December 31, 1979, Judge Van Pelt entered an order directing David to pay $275 per month for the support of Jayson. David states that he found out about December 26, 1979, that an order for child support had been entered in Lancaster County, but he did not know the amount. David states he first heard of the modification to $275 per month on August 1, 1983, when he appeared in court for failure to pay child support and spoke with Deputy County Attorney Joe Kelly. David had, however, appeared in the district court for Lancaster County on June 1, 1983, and agreed to pay $150 per month on child support starting June 10, 1983, with $75 of that to be on current support and $25 on arrearage. Obviously, there was some confusion at that hearing.

David filed this action on October 27, 1983. His first assignment of error is that the trial court erred by failing to find that the Nebraska court was without jurisdiction to increase the amount of support previously ordered by the Iowa court. This issue is not one of first impression with this court. Chisholm v. Chisholm, 197 Neb. 828, 251 N.W.2d 171 (1977), involved a California divorce and a subsequent proceeding under the Nebraska URESA. The court in Chisholm, in reference to the URESA, stated at 830, 251 N.W.2d at 173: "Under the statute the court in the responding state may fix the support payment at a different amount than that specified by the judgment in the initiating state. Moore v. Moore, 252 Iowa 404, 107 N.W.2d 97; Swan v. Shelton (Mo.App.), 469 S.W.2d 943." See, also, State of Iowa ex rel. Petersen v. Miner, 226 Neb. 551, 412 N.W.2d 832 (1987).

David's first assignment of error is therefore without merit.

David's second assignment of error is that the trial court erred in finding that due process was observed when it entered judgment requiring him to pay $275 per month for the support of his minor child.

As previously noted, David did not receive actual notice of the December 26, 1979, hearing until that date, after the hearing had taken place. He filed no appearance or pleadings in the URESA case, nor did he file any request for notice of hearing, even though he was aware that the action was pending. He did not ask what order had been entered on December 26, 1979. He did not go to the clerk of the district court for Lancaster County to obtain a copy of the order, nor did he make inquiry of the county attorney's office as to what order had been entered.

The failure of David to receive notice prior to the taking of a default judgment in the URESA case is not determinative, since notice is not required, David having filed no appearance or pleading in the URESA case. This court held in Tejral v. Tejral, 220 Neb. 264, 267, 369 N.W.2d 359, 361 (1985) that

where a party in a dissolution of marriage case is served personally with a summons and a copy of the petition in the case, and that party chooses not to file any pleading nor to enter an appearance in the case, and has not otherwise requested notice of hearing, notice of default hearing need not be given to such party. We further hold that it is an abuse of the trial court's discretion under § 42-372 to set aside a dissolution decree, properly entered, on the sole basis that notice of hearing was not sent to the party in default of filing any pleading or entering an appearance in the case.

The same rule is applicable in a URESA case.

Due process was duly observed. David's second assignment of error is without merit.

David's third assignment of error is that the trial court erred by finding that David was not equitably entitled to a new trial on the issue of how much child support he should be required to pay.

It is clear from the history of this case that the trial court's action was appropriate and that David is not entitled to any relief, either by statute or through the court's general equity powers.

The...