McDougall v. McDougall

• Decision Date: 11 August 1998
• Docket Number: No. 97-305,97-305
• Citation: 961 P.2d 382
• Parties: John Thomas McDOUGALL, Appellant (Defendant), v. Krista Kae McDOUGALL, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 382

961 P.2d 382

John Thomas McDOUGALL, Appellant (Defendant), v. Krista Kae McDOUGALL, Appellee (Plaintiff).

No. 97-305.

Supreme Court of Wyoming.

Aug. 11, 1998.

Mary T. Parsons, Cheyenne, for Appellant(Defendant).

Peter G. Arnold and James R. Salisbury of Riske & Arnold, P.C., Cheyenne, for Appellee(Plaintiff).

Before LEHMAN ^*, C.J., and MACY and GOLDEN, JJ., and KALOKATHIS and GRANT, District JJ.

KALOKATHIS, District Judge.

This is an appeal from an order denying relief from a motion under W.R.C.P. 60(b)(4) seeking to set aside as void, for lack of subject matter jurisdiction, a divorce decree entered on December 15, 1992. We affirm.

ISSUES

Appellant, John Thomas McDougall (husband), states the issues as:

I. Whether the trial court erred in its denial of appellant's motion to set aside decree of divorce and dismiss pursuant to Rules 12(h)(3) and 60(b)(4).

II. Whether in the absence of subject matter jurisdiction in the divorce, the determination of child custody and child support matters was proper.

III. Should the judgment awarding appellee's attorney fees stand if this court finds the trial court lacked subject matter jurisdiction?

Appellee, Krista Kae Aris, f/k/a Krista Kae McDougall (wife), presents her issues:

I. Whether the decree of divorce is valid

A. Whether the Trial Court had subject matter jurisdiction to enter the Decree of Divorce.

B. Whether principles of equity prevent Appellant from contesting the validity and effect of the Decree of Divorce.

II. Whether the determination of child support and custody issues by the trial court was within the jurisdiction of the court.

III. Whether the trial court's award of costs and attorneys' fees to appellee was proper.

IV. Whether the appellee is entitled to an award of her attorney's fees and cost in the event the decision is affirmed.

FACTS

The parties were married in Cody, Wyoming on June 22, 1989. The parties' daughter was born in Laramie, Wyoming. Immediately following their wedding, the parties moved to Lansing, Michigan where the husband attended Michigan State University. Eventually, the wife also attended Michigan State University, enjoying Michigan resident status, from 1990 until her graduation in May 1992.

The wife and child remained in Michigan until September 1992 when they moved to Ft. Collins, Colorado while the husband remained in Michigan. On September 11, 1992, the wife filed a complaint for divorce in Platte County, Wyoming. In October 1992, the wife began commuting to Cheyenne, Wyoming from Ft. Collins to work. The wife placed the child in a Cheyenne day care. On December 15, 1992, the district court entered a default divorce decree. The husband, although properly served, did not enter an appearance.

In March 1993, the wife and child moved to Cheyenne. Both the husband and the wife have remarried and have children from their second marriages.

The divorce decree ordered that the husband provide support for the child. Some child support payments were made, but not through the clerk of court. Accordingly, charges were filed against the husband for violating the federal child support enforcement statutes. The husband was arrested in November 1996 in Texas.

Thereafter, the husband filed a motion to dismiss and set aside decree of divorce. He argued that the district court did not have subject matter jurisdiction over the divorce action because the wife had not resided in Wyoming for the "sixty (60) days immediately preceding the time of filing the complaint * * *." Wyo. Stat. § 20-2-107(a) (1997). The district court entered an order denying the husband's motion, finding that the district court had subject matter jurisdiction because the wife never established permanent residence outside of Wyoming and that the husband was estopped from challenging the validity of the divorce decree.

DISCUSSION

The principles concerning subject matter jurisdiction are well defined, consistent and deeply rooted. Subject matter jurisdiction cannot be conferred by the consent of the parties. Spratt v. Security Bank of Buffalo, Wyo., 654 P.2d 130, 134 (Wyo.1982). Nor can subject matter jurisdiction be waived. Brunsvold v. State, 864 P.2d 34, 36 (Wyo.1993); United Mine Workers of America Local 1972 v. Decker Coal Co., 774 P.2d 1274, 1283 (Wyo.1989); Nicholaus v. Nicholaus, 756 P.2d 1338, 1342 (Wyo.1988).

A presumption of regularity attaches to decrees not challenged directly. First Wyoming Bank, N.A.-Cheyenne v. First Nat. Bank and Trust Co. of Wyoming, 628 P.2d 1355, 1362 (Wyo.1981). Moreover, such decrees carry a prima facie presumption of jurisdiction. State ex rel. Sheehan v. District Court of Fourth Judicial Dist., In and For Johnson County, 426 P.2d 431, 434 (Wyo.1967).

Wyo. Stat. § 20-2-107(a) provides, in pertinent part: "No divorce shall be granted unless the plaintiff has resided in this state for sixty (60) days immediately preceding the time of filing the complaint * * *." The term "resided" implicates the concept of domicile. Once a domicile is established, it continues until a new one is actually acquired. Duxstad v. Duxstad, 17 Wyo. 411, 100 P. 112, 114 (1909). A change of address alone does not amount to a change in domicile. Such change must be with the intention of making that place the permanent residence. Id. 100 P. at 114. This intention, or animus manendi, has been defined as:

[T]he intent to reside in the new place permanently or indefinitely, or to make the new place one's permanent home, or as the absence of an intention to live elsewhere. It has also been said that there must be (1) an intention to abandon the old domicil, and (2) an intention to acquire a new one.

24 Am.Jur.2d Divorce and Separation § 245 (1983) (footnotes omitted).

Even though a party may be absent from the state of original domicile, that domicile continues until a new one is adopted. See Duxstad, 100 P. at 114. The husband argues that the wife abandoned her Wyoming domicile when she filed for resident status in Michigan to obtain a favorable tuition rate. Moreover, the wife lived in Ft. Collins at the time she filed the divorce complaint. The wife argues that her stay in Ft. Collins was necessitated by the lack of adequate housing in Cheyenne and further asserts that while the action was pending, she took a job in Cheyenne, placed her child in day care in Cheyenne and eventually moved to Cheyenne, where she presently resides.

A finding of Wyoming residence based upon these facts is suspect. However, a W.R.C.P. 60(b) proceeding is not limited to a one-dimensional inquiry into residence. The doctrine of estoppel is available in exceptional cases and so is the presumption of regularity.

The doctrine of estoppel does not validate an otherwise invalid decree. Rather, it imposes a personal disability on the party challenging the decree. It precludes the party from presenting evidence to overcome the presumption of regularity. The application of estoppel in divorce actions has been synthesized by Professor Homer Clark in Estoppel Against Jurisdictional Attack on Decrees of Divorce, 70 Yale L.J. 45, 56-57 (1960) as follows:

1) The attack on the divorce is inconsistent with prior conduct of the attacking party. 2) The party upholding the divorce has relied upon it, or has formed expectations based upon it. 3) These relations or expectations will be upset if the divorce is held invalid.

The estoppel principle has...