McLean v. McLean, 6631.

• Decision Date: 08 January 1940
• Docket Number: No. 6631.,6631.
• Parties: McLEAN v. McLEAN.
• Court: North Dakota Supreme Court

69 N.D. 665

290 N.W. 913

McLEAN

v.McLEAN.

No. 6631.

Supreme Court of North Dakota.

Jan. 8, 1940.

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.

BURKE, J., dissenting.

Francis Murphy, of Fargo, for plaintiff and respondent.

Scott Cameron and Chas. L. Crum, both of Bismarck, for defendant and appellant.

BURR, Judge.

Plaintiff, in his action for divorce, filed a verified complaint showing both parties to be residents of North Dakota “in good-faith * * * 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 $75,000.00, 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, attorney's fees, and temporary and permanent support, and “that he have such other and further and 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 said Defendant found within the jurisdiction of this Court * * *”; and, further, that the amount of the payments ordered by the court to be made by the defendant to the plaintiff “shall constitute a lien upon all of the hereinbefore described property of the Defendant, and upon all of the property of the Defendant found within the jurisdiction of this Court, including rentals therefrom, * * *,” all in accordance with the findings of fact and conclusions made.

From the order and decree of the district court the defendant appealed to this court “in so far as said decree granted alimony to the said plaintiff in the sum of $3435.20 and the further sum of $100.00 per month thereafter so long as the plaintiff shall live, and further providing that a receiver might be appointed for all of defendant's property in the event she failed to give reasonable security for such payments, and that the defendant's real property should be distributed and that the plaintiff should be given an undivided one fourth interest in the net income from said property, and hereby demands a re-trial of said cause upon the merits in so far as the alimony award is concerned under the specifications of error served herewith.”

There are three specifications of error alleging: “The court erred in overruling and denying defendant's special appearance * * *,” erred in awarding payment of the bills and alimony etc. because such decree was based solely upon personal service upon defendant in the State of Nevada and outside the State of North Dakota; and “The court erred in holding that the wife's property was liable for her husband's debts contracted while the wife was living separate and apart from him and all the debts contracted by the plaintiff were so contracted after the plaintiff and defendant had separated from each other and were living separate and apart from...