Klaudt v. Klaudt
| Decision Date | 31 January 1968 |
| Docket Number | No. 8464,8464 |
| Citation | 156 N.W.2d 72 |
| Parties | Milton KLAUDT, Plaintiff and Respondent, v. Margaret M. KLAUDT, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A divorce must not be granted unless the plaintiff in good faith has been a resident of the state for twelve months next preceding the commencement of the action. N.D.C.C. § 14--05--17. That provision is not a jurisdictional prerequisite in the strict sense that it limits or restricts the jurisdiction of the district court to hear the case and determine all the issues in the action, including the question of the plaintiff's residence.
2. When the trial court had jurisdiction of the subject matter (divorce) and the parties (the plaintiff because he invoked its jurisdiction in initiating the action and the defendant because she appeared generally by counsel), it had jurisdiction to try and determine the action notwithstanding that the plaintiff may not have resided in this state for twelve months next preceding the commencement of the action.
3. An appeal from a judgment may be taken within six months 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. N.D.C.C. § 28--27--04.
4. When the record did not disclose that a written notice of the entry of a judgment was served upon the defendant, but the defendant had actual knowledge of the entry of the judgment, as evidenced by her first notice of motion to vacate the judgment, the purpose of N.D.C.C. § 28--27--04 was fulfilled. Accordingly, it is held that the time within which the defendant could appeal from that judgment began to run from the date she served her notice upon the plaintiff to vacate it. When an appeal was not taken within six months from that date nor within sixty days of the service of the written notice of the entry of the order denying that motion, the judgment and order became final.
5. When the complaint in a divorce action alleged that the plaintiff in good faith had been a resident of this state for twelve months next preceding the commencement of the action, and that was one of the findings of the trial court upon which the divorce judgment was based, the issue of residence was determined and the judgment became res judicata on that issue when the time for appeal expired.
6. The defendant's contention upon which she based her claim for relief has been examined in light of N.D.R.Civ.P. 60(b), and for reasons stated in the opinion it is held that she is entitled to no relief under that rule.
George E. Duis, Fargo, for appellant.
Hjellum, Weiss, Nerison & Jukkala, Jamestown, for respondent.
On August 30, 1961, Milton Klaudt filed his complaint with the Clerk of the District Court of Burleigh County, seeking a divorce from his wife Margaret M. Klaudt. For purposes of clarity we shall hereafter refer to the parties by their first names.
Service of the summons was made upon Margaret in the State of Idaho on September 12, 1961. An answer and counterclaim were interposed by Margaret, to which Milton replied. The case came on for hearing before the district court at Jamestown in Stutsman County on April 19, 1962, pursuant to stipulation entered into by counsel for both parties. At this hearing Milton appeared in person and was represented by counsel, and although Margaret did not appear in person, her appearance was entered by her counsel. An agreement entitled 'Stipulation' which was signed by both Milton and Margaret and by their respective counsel was submitted to the court. Among other things the stipulation requested an immediate trial of the issues raised by the pleadings and contained a statement to the effect that the counterclaim and the reply thereto were withdrawn. From the transcript we note that counsel for Margaret informed the court that an answer had been filed. As the record before us does not contain either the answer or the counterclaim, we assume that they were contained in the same instrument and that they were both withdrawn. Milton and his corroborating witness testified, and counsel for Margaret cross-examined Milton on matters which are immaterial to the issue on this appeal. No evidence was submitted on Margaret's behalf, and no objection was made by her counsel to the granting of the divorce. He made the following statement at the close of the proceedings:
I have entered my appearance in this case. Collusive divorces are against the law, and I don't concede the grounds were proved here. I do say this stipulation was entered into by my client and she understands the terms thereof, and if the Court decides there are grounds, then we consent that this stipulation be incorporated in the judgment; and of course, if the Court decides there are grounds, I can see of no reason why the parties should be restricted from remarrying at any time.
Following that statement the court stated that it believed the plaintiff had grounds for divorce and that it was granting him an absolute decree of divorce, with the property settlement and support agreement stipulation to be incorporated in the judgment.
Contained in the complaint was the allegation that '(Milton Klaudt and Margaret M. Klaudt) are citizens of the United States of America and for more than one year last past have been in good faith residents of North Dakota.'
Finding No. 2 of the court's findings of fact reads as follows: 'That (Milton Klaudt and Margaret M. Klaudt) are citizens of the United States of America and for more than one year last past have been in good faith residents of North Dakota.'
The findings of fact, conclusions of law, and order for judgment are dated April 23, 1962, and the judgment based thereon is dated April 30, 1962. The filing data discloses that the judgment was filed in the office of the Clerk of the District Court of Burleigh County on the latter date.
The record does not disclose the date upon which written notice of the entry of the judgment was served upon Margaret, but in any case no further legal action was taken in North Dakota by Margaret until January 18, 1963, when she served on Milton and his counsel by mail what is denominated in the affidavit of service as 'Notice of Motion to Vacate Judgment and Affidavit.'
The motion asked that the court set aside and vacate the judgment 'heretofore entered' or in the alternative that the court vacate the judgment 'hereinbefore entered' and 'reinstate' the defendant's answer and permit her to defend the action on the merits.
This motion was heard by the district court in Jamestown on February 11, 1963. Following the taking of considerable testimony submitted by Margaret, the cross-examination of Milton, and the presentation of argument by counsel for both parties, the court took the case under advisement. In its order of June 16, 1965, it denied the defendant's motion and ordered that judgment be entered accordingly. Judgment on this order was accordingly entered and filed on June 21, 1965, in the office of the Clerk of the District Court of Burleigh County.
The order denying the defendant's motion in the alternative and the notice of the entry of the judgment on that order were served by mail upon Margaret's counsel on June 21, 1965. As indicated by the affidavit of service, service of the notice of appeal from 'the Judgment and Decree heretofore entered in the above captioned matter and from the Order of District Judge M. C. Fredricks denying the Defendant's Motion to Vacate Judgment and denying the alternative Motion for an Order Vacating and Setting Aside Judgment and Decree herein, which Order was entered on the 16th day of June, 1965, in favor of the Plaintiff and against the Defendant' was served upon counsel for Milton on July 7, 1965. That appeal, however, was not perfected.
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