McLean v. McLean
| Decision Date | 08 January 1940 |
| Docket Number | 6631 |
| Citation | 290 N.W. 913,69 N.D. 665 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. In an action for divorce and for the support and maintenance of the plaintiff, the district court in which the action is brought has jurisdiction to require the defendant to pay such sum of money as may be necessary for the temporary support and maintenance of the plaintiff, and if a divorce be granted, has jurisdiction to make such equitable distribution of the property of both parties as is just and proper, and may compel either party to make such suitable allowance to the other for support during life or for such period as the court may deem just. The district court has continuing jurisdiction from time to time to modify its order in this respect.
2. Under the law of this State it is as much the duty of the wife to support and maintain the husband out of her separate property when he is unable to take care of himself and she has sufficient property so to do, as it is for the husband to support the wife under similar circumstances.
3. Whether an appearance by the defendant is special or general is not determined by the title assigned, but by what the party does, and where in any so-called special appearance the defendant invokes the jurisdiction of the court to determine certain issues in dispute between the parties and which are involved in the trial of the case, such appearance becomes a general appearance, irrespective of its designation.
4. In this action for divorce and maintenance brought by the husband against his wife where the complaint shows that the defendant has real property within this state, generally described and within the territorial jurisdiction of the court, and personal service of the summons and complaint is made in another state, the court has power in the trial of the action to determine the amount necessary and just under all of the circumstances in the case for the maintenance and support of the husband, and to subject the property of the wife within the jurisdiction of the court to the payment of such amount.
5. The property of a wife is not subject to the debs of her husband and her earnings and accumulations made while living separate from him are her separate property.
6. Upon the record it is held: that the district court erred in granting the plaintiff judgment against the defendant in an amount sufficient to pay the debts of the plaintiff involved in this action.
Appeal from District Court, Burleigh County; John C. Lowe, Special Judge.
Action by Lester Wilber McLean against Cora M. Strauss McLean for divorce and support. Decree for plaintiff and defendant appeals.
Modified and affirmed as modified.
Charles L. Crum (Scott Cameron, on oral argument) for appellant.
A personal decree for judgment for alimony rendered in a proceeding for divorce in favor of the wife against her nonresident husband, not served with process within the state, but brought before the court only constructively by publication of notice to appear, or by personal service of such notice in another state, in the absence of a voluntary appearance, is void, not only in the state where rendered, but in every other jurisdiction as well. Stallings v. Stallings, 9 L.R.A. 593; Raher v. Raher, 150 Iowa 511, 129 N.W. 494; Pennoyer v. Neff, 95 U.S. 714, 24 L. ed. 565; Johnson v. Matthews, 124 Iowa 255, 99 N.W. 1064; Sowders v. Edmunds, 76 Ind. 123; Baker v. Jewel, 114 La. 726; Larson v. Larson, 82 Miss. 116; Anderson v. Anderson, 55 Mo.App. 268; Dillon v. Starin, 44 Neb. 881, 63 N.W. 12; Benner v. Benner, 63 Ohio St. 220.
Although a divorce ex parte may be obtained on constructive service, yet no alimony can be decreed unless the defendant appears to the action in person or by attorney, or has been duly served with process within the jurisdiction of the court. 1 Enc. Pleading & Practice, 412, para. 3.
Francis Murphy, for respondent.
The alleging in the complaint that the ownership of the property is in the defendant, the filing of lis pendens and the division and distribution of the property in the decree, constitute sufficient notice that the proceeding was against the property and was in rem. Closson v. Closson, 29 A.L.R. 1371; Pulkrabek v. Pulkrabek, 48 N.D. 243, 183 N.W. 850; Bailey v. Bailey, 53 N.D. 887, 207 N.W. 987.
Plaintiff, in his action for divorce, filed a verified complaint showing both parties to be residents of North Dakota "in goodfaith . . . for more than twelve months next preceding the commencement of this action;" that the defendant had been guilty of wilful desertion and extreme cruelty, and had "attempted to secure a divorce from this plaintiff in the state of Nevada although she well knew she was not a resident of said state . . .;" that he was ill and bedridden, "wholly without money or funds or property of any kind . . .;" has been long physically confined to the hospital, and defendant, though having ability so to do, "has failed, neglected and refused to provide for medicine, medical care, or hospitalization, or any care for this plaintiff, leaving him wholly destitute and subject to the assistance of strangers and of charity." The complaint alleges that "defendant is possessed of a great deal of valuable property, and at the present time owns approximately twelve houses in the city of Bismarck from which she derives rent; a two-story store building with three apartments on the second floor in said city from which she realizes in the neighborhood of five or six hundred dollars per month in income; and she owns approximately four quarter sections of land near Menoken in said state of North Dakota, and considerable other city property in the said city of Bismarck; and a one-half interest in land now being used as an airport in the vicinity of Bismarck, and other property, and her assets are of the value of approximately $ 75,000, from which she receives a substantial income; that the plaintiff for a number of years last past and as long as he was physically able to do so, assisted and aided the defendant in the management of said properties and in the collection of the rents thereof, and in preserving the same."
The plaintiff prays for a divorce, suit money, attorneys' fees, and temporary and permanent support, and "that he have such other and further additional relief as the court may deem just and equitable."
The plaintiff applied for an order, directed to the defendant, requiring her to show cause why temporary support and suit money should not be provided by her. The summons, complaint, and this order to show cause were served upon the defendant in the state of Nevada on February 16, 1939. On March 20 the defendant served upon the plaintiff a notice of special appearance in the matter of the order to show cause, together with a motion to dismiss the order to show cause on grounds similar to those hereinafter quoted. The record is silent as to the disposition of this order to show cause. The defendant interposed no answer, but when the case came on for hearing she appeared and served another "Special Appearance and Motion" which, omitting the title and caption, etc., is as follows: "Comes now the defendant, Cora Strauss McLean, and appearing especially for the purpose of this motion, and for no other purpose, moves the court to dismiss this action in so far as any question of alimony, either temporary or permanent, is concerned, upon the ground and for the reason that the court has no jurisdiction to award the plaintiff alimony herein in that an award of alimony to the plaintiff and against the defendant would constitute a personal judgment in favor of the plaintiff and against the defendant based solely upon constructive or substituted service upon the defendant outside of the state of North Dakota and in the state of Nevada which gives this court no jurisdiction to render a personal judgment herein."
The special appearances and motions make no attempt to prevent the granting of a divorce, do not ask that the service of the summons be quashed, and do not question the validity of the substituted service.
Despite these special appearances and motions, the court proceeded to the trial of the case and made findings of fact, conclusions of law, and order for judgment. In conformity with the order, judgment was entered granting a decree of divorce and ordering the defendant to assume and pay personal bills of the plaintiff, the costs of the action and attorney's fee, all in the sum of $ 3,435.20; further ordered the payment of $ 100 per month to the plaintiff "for and during the balance of his life . . . for support, maintenance, hospitalization, and doctor bills . . .;" required the defendant to give "reasonable security for the payments" to be made; and further ordered that in case defendant failed to furnish such security the property of the defendant, which is itemized and described by the usual descriptions, "be divided and distributed, and that the plaintiff have an undivided one-fourth interest in said property, and the whole thereof . . . ;" that the defendant be required to deliver to the plaintiff "such conveyances and assignments as may be necessary to consummate the foregoing division and distribution of said property . . .;" further, that in case the defendant failed to make the payments and execute the conveyances as required, "the same may be enforced by an order of this court, upon the application of the plaintiff, with or without notice to the defendant, for the appointment of a receiver of all of the properties of...
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