Kinsella v. Kinsella
| Decision Date | 04 December 1970 |
| Docket Number | No. 8623,8623 |
| Citation | 181 N.W.2d 764 |
| Parties | Yvon B. KINSELLA, Plaintiff and Respondent, v. Leona A. KINSELLA, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Where an attorney has initiated an action for arrearages in child support payments, a subsequent motion to modify the divorce judgment may be served in the manner prescribed in Rule 5(b), N.D.R.Civ.P.
2. Where a motion to vacate an order modifying a divorce judgment is made on a timely basis, Rule 60(b)(6), N.D.R.Civ.P., which provides that the court may relieve a party from a final order for any reason justifying such relief, should be invoked in the best interests of the minor child.
3. Where the trial court specifically considers child support payments which are past due, retrospective modification or cancellation should not be allowed.
William R. Mills, Bismarck, for defendant and appellant.
Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for plaintiff and respondent.
Mrs. Kinsella attempts here to appeal from a divorce judgment dated February 10, 1956, from the order modifying judgment dated November 27, 1968, and from the order dismissing the motion to vacate, dated August 15, 1969. There is also a demand for a trial de novo by the defendant and appellant, Leona A. Kinsella. The origin of this case is based on a divorce judgment issued by the District Court of Burleigh County, North Dakota, on February 10, 1956, in which Yvon B. Kinsella was the plaintiff and Leona A. Kinsella was the defendant. Mrs. Kinsella, pursuant to the terms of the divorce judgment, was awarded the absolute custody, care, and control of the minor children of the parties subject to rights of reasonable visitation with their minor children by Mr. Kinsella, at Mrs. Knsella's residence. The property settlement agreement, dated December 23 1955, was incorporated into the judgment by reference. The divorce judgment provides that Mr. Kinsella was to pay Mrs. Kinsella at her residence, for support of the minor children of the parties, the sum of $150.00 per month, commencing with the month of December 1955.
Mrs. Kinsella, during the year 1965, moved with their children to California. She avers that she moved to California for economic reasons because she was not able to support her children from the wages she earned as a waitress in Bismarck, even during the time when Mr. Kinsella was contributing child support on a regular basis. Since the 1956 divorce, Mr. and Mrs. Kinsella both the remarried. Mrs. Kinsella (now Mrs. Shalkowski), on July 17, 1968, through her attorney, commenced an action in the Burleigh County District Court against Mr. Kinsella to secure child support payments which were in arrears, in the sum of $1,100,00. Mr. Kinsella made a motion for change of place of trial, since he was a resident of Cass County, and, in addition, he interposed an answer wherein he alleged that no support money was due, primarily for the reason that the divorce judgment awarded him the right of reasonable visitation with his children at Bismarck, North Dakota, and that since his former wife had moved to California and had taken their minor children with her, his right of visitation was wrongfully terminated.
On September 18, 1968, Mrs. Kinsella filed a complaint in Cass County for child support under the Uniform Reciprocal Enforcement of Support Act in an action entitled 'Leona A. Shalkowski, Plaintiff v. Yvon B. Kinsella, Defendant', in which she alleged that since September of 1967, Yvon Kinsella had failed to provide support payments of $75 per month for their only dependent child, Holly, the older daughter having married on March 10, 1968.
The Honorable Clifford Jansonius, Judge of the District Court of Burleigh County, on November 9, 1968, issued an order changing the venue in the proceeding from Burleigh County, Fourth Judicial District, to Cass County, First Judicial District. While the action for child support payments and the Uniform Reciprocal Enforcement of Support action were pending, Mr. Kinsella, on November 18, 1968, made a motion before the Burleigh County District Court to modify the divorce judgment insofar as support payments were concerned. Mr. Kinsella's motion to modify the original divorce judgment was personally served upon Mr. William R. Mills of Bismarck, Mrs. Kinsella's counsel in the action initiated by her on July 17, 1968. However, neither Mrs. Kinsella nor her attorney appeared at the November 25, 1968, hearing on the motion to amend the divorce judgment. Pursuant to such motion, on November 27, 1968, Judge Jansonius entered an order amending the February 10, 1956, divorce judgment. This order provided that because of Robin Kinsella's marriage on March 10, 1968, Mr. Kinsella's obligation of $75.00 per month child support for her was terminated as of the date of her marriage. The order also stated that the child support arrearages which accrued from August of 1967 to November 27, 1968, the date of the order, of $75.00 per month for Holly, age 13, were canceled for the reason that Mrs. Kinsella had moved from North Dakota to California and had refused Mr. Kinsella's reasonable visitation privileges to said child. The order further stated that Mr. Kinsella's future support obligations of $75.00 per month for Holly were terminated until such time as Mr. Kinsella was afforded reasonable visitation rights in North Dakota, including the right to have Holly visit at his home in Fargo.
In December of 1968, the Cass County District determined that no cause of action existed under the Uniform Reciprocal Enforcement of Support Act, and Mrs. Kinsella's petition was dismissed without prejudice provided the original divorce decree should be further modified. The Cass County District Court based its decision on the order entered on November 27, 1968, which modified the divorce judgment and terminated the child support arrearages, as well as future support.
Mr. Kinsella, on December 5, 1968, made a motion for a summary judgment in the arrearage proceedings commenced by Mrs. Kinsella. The Cass County District Court postponed further action on the motion for a summary judgment until such time as Mrs. Kinsella moved to set aside the order of November 27, 1968, which order modified the original divorce judgment.
Mrs. Kinsella, on January 15, 1969, moved to set aside the order of November 27, 1968. Subsequently, Judge Jansonius issued an order dismissing Mrs. Kinsella's motion to vacate, holding that the court had jurisdiction to enter the order of November 27, 1968, and, after considering the reasons set forth by the parties, he found that there were no compelling reasons to vacate such order. On August 25, 1969, Mr. Kinsella again made a motion for a summary judgment in the arrearage action. On September 10, 1969, the Honorable Judge Roy K. Redetzke, of Cass County District Court, issued an order postponing the hearing on the motion for a summary judgment until such time as Mrs. Kinsella could appeal the order dismissing her motion to vacate the order of November 27, 1968.
Section 28--27--04 of the North Dakota Century Code provides:
'An appeal from a judgment may be taken within ninety days after the entry thereof by default or after written notice of the entry thereof, in case the party against whom it is entered has appeared in the action, and from an order within sixty days after written notice of the same shall have been given to the party appealing.'
Since the appeal from the judgment and from the order modifying the judgment were not taken within the time prescribed by § 28--27--04, N.D.C.C., this Court does not have jurisdictions to hear and determine said appeals. Thus the only appeal before this Court is from the order dismissing the motion to vacate, dated August 15, 1969. Mrs. Kinsella's demand for a trial de novo is improper because she has appealed solely from this order. The statute authorizing trials anew in this Court applies exclusively to judgments. § 28--27--32, N.D.C.C.; Guldeman v. Heller, 151 N.W.2d 436 (N.D.1967); Dale v. Duffy, 44 N.D. 33, 176 N.W. 97 (1919).
The district court has had continuing jurisdiction in rem in the case at bar.
The issue arising from this appeal is whether or not the district court abused its discretion in denying Mrs. Kinsella's motion to vacate the order of August 15, 1969. There are two questions to be answered in considering this issue:
1. Did the Burleigh County District Court acquire personal jurisdiction of Mrs. Kinsella by service of the motion papers upon Mrs. Kinsella's attorney, pursuant to Rule 5(b), of the North Dakota Rules of Civil Procedure?
and
2. Was the district court's order dismissing the motion to vacate, under Rule 60(b), N.D.R.Civ.P., an abuse of discretion?
Rule 5(b), N.D.R.Civ.P., reads as follows:
'SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS
An analysis of Rule 5[b] is found in 1 Barron and Holtzoff, Federal Practice and Procedure § 203, at 763 (Wright Ed.). After...
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