Myers v. Myers

• Decision Date: 16 August 1923
• Docket Number: 3975
• Citation: 218 P. 123,62 Utah 90
• Court: Utah Supreme Court
• Parties: MYERS v. MYERS

218 P. 123

62 Utah 90

MYERS v. MYERS

No. 3975

Supreme Court of Utah

August 16, 1923

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action for divorce by Isabella Myers against J. William Myers. On order to show cause why defendant should not be punished for failure to make payments on account of alimony. From judgment plaintiff appeals, and defendant cross-appeals.

AFFIRMED on cross appeal, ANNULLED and REMANDED for further proceedings on direct appeal.

C. R Hollingsworth, of Ogden, for appellant.

Stuart P. Dobbs, of Ogden, for respondent.

GIDEON J. WEBER, C. J., and THURMAN and CHERRY, JJ., concur. FRICK, J., did not participate.

OPINION

GIDEON, J.

On June 24, 1919, the district court of Weber county entered its decree in an action therein pending, wherein Isabella Myers (appellant here) was plaintiff, and J. William Myers (respondent and cross-appellant) was defendant, dissolving the bonds of matrimony existing between the parties and awarding the plaintiff the care and custody of the minor child, also giving plaintiff permanent alimony in the sum of $ 25 per month. No part of the alimony was paid. On or about March 23, 1923, the court made its order, based upon an affidavit filed by the plaintiff, directing the defendant to appear on April 2, 1923, and show cause why he should not be punished for failure to make payment on account of alimony as provided in the decree of June 24, 1919. In answer to that order, defendant appeared specially, and by motion challenged the right of the court to require the defendant to pay alimony. The objection was that the court never had jurisdiction to render a personal judgment for alimony. The motion was supported by an affidavit on behalf of defendant, in which it is made to appear that service of the summons in the divorce action was accepted in the state of Oregon. The claim of the plaintiff for an order requiring the defendant to pay alimony, and the defense interposed by defendant's motion, were submitted to the court with the record in the case. It does not appear that any testimony was taken. Findings were made by the court, and an order made denying defendant's objections to the jurisdiction of the court to enter a personal judgment for alimony. The court concluded that there was due and unpaid from defendant to plaintiff $ 55, "for alimony at the rate of $ 25 per month from June 24, 1919, to September 1, 1919." Among the court's findings is one to the effect that plaintiff married one William A. Nelson, September 1, 1919, in the state of Wyoming, "three months and 24 days before the expiration of six months after entry of the divorce decree, and ever since has lived and is now living with him in the relation of wife."

The decree of divorce, in conformity with our statute, provided that it should not become absolute until after six months from the date of entry. The question presented by appellant is the alleged error of the court in holding that the marriage automatically terminated the decree for permanent alimony. The question presented by cross-appellant is that the court erred in holding that it had jurisdiction under the original divorce proceedings to enter a judgment requiring defendant to pay alimony.

We shall consider first the question presented by the cross-appeal.

The defendant's affidavit that he accepted service in the state of Oregon is not disputed. The court found that to be the fact. It seems that the summons was mailed to defendant by plaintiff's attorney. There was indorsed on the bottom of the summons the following:

"Comes now the above-named defendant, J. William Myers, in his own proper person, and hereby accepts service of summons in the above-entitled action, and takes thirty days from this date to answer or otherwise plead to the complaint filed therein. Dated this 19th day of May, 1919.

"[Signed]

J. William Myers."

No order of publication was made.

Cross-appellant contends that the mere acceptance of service of the summons in a state other than the one in which the action is pending is not an appearance in the action.

If the indorsement on the summons contained nothing but the acceptance of service, the contention would have to be upheld. The cases cited are to that effect. Weatherbee v. Weatherbee, 20 Wis. 499; Bank v. Roger, 12 Minn. 529, Gil. 437. In addition to accepting service, however, defendant took 30 days from the date of such acceptance to answer or otherwise plead to the complaint. Asking or taking time to plead to a complaint is generally held to be an appearance in the action, and brings the person of the defendant within the jurisdiction of the court. 2 R. C. L. 329, § 8. The contention of cross-appellant that the court was without jurisdiction was rightly denied.

In considering the claim of appellant, we express no opinion whether the marriage of plaintiff to William A. Nelson on September 1, 1919, was a valid marriage, and shall determine this case without regard to that question.

The only record before this court, as above stated, is the complaint, summons, findings, conclusions, and judgment in the original action, plaintiff's affidavit of March 23, 1923, the order of the court made on that affidavit, defendant's motion and affidavit in support of the motion, the findings of the court, and its judgment on the motion. It nowhere appears in any of the affidavits that plaintiff had remarried. The court, however, so found, and that finding is not challenged.

Appellant's claim of error is that the court was wrong in its conclusion that only the sum of $ 55 was due upon the judgment for alimony. It is stated, and is apparent from the oral argument and written briefs of counsel, that the court was of the opinion that the marriage to Nelson terminated, or rendered ineffective, the judgment for alimony. On that question the authorities are not in harmony. We are, however, of the opinion that the weight of authority is to the effect that a remarriage does not automatically terminate the judgment for alimony. 1 R. C. L. 940.

In McGill v. McGill, 101 Kan. 324, 166 P. 501, the Supreme Court of Kansas says:

"Whatever may be thought, or should be thought, about the policy or propriety of requiring a divorced husband to continue payment of alimony to a wife remarried to another man, the authorities are preponderant in support of the doctrine that her marriage does not of itself operate as a release of the obligation, although it may well be a ground of application for discharging the defendant from further payments."

See, also, 14 Cyc. 787; 2 A. & E. Ency. Law (2d Ed.) 138; note 11, Ann. Cas. 523.

It is argued on behalf of cross-appellant that the decree for future alimony under the wording of our statute does not amount to, or constitute what is designated by counsel, a "vested right," the claim being that alimony past due, or in the future, is subject to be defeated by an order of the court entering the decree. Reliance is had upon the opinion of this court in Hunt v. Monroe, 32 Utah 428, 91 P. 269, 11 L.R.A. (N. S.) 249. In that case this court held that a judgment of the state of Colorado for alimony, payable monthly, is not such a judgment as requires a sister state to give it full faith and credit under the federal Constitution, "unless and until the court which rendered it, passes upon, and fixes a specific amount due and payable in some proper proceeding in the original action, or by an independent action, if such action can be maintained in the state where the original order or judgment was entered." The court there followed the Supreme Court of the United States in Lynde v. Lynde, 181 U.S. 183, 21 S.Ct. 555, 45 L.Ed. 810, which affirms the judgment of the Court of Appeals of New York as reported in ...