Nelson v. Nelson

• Decision Date: 16 September 1946
• Docket Number: 8845,8855.
• Parties: NELSON v. NELSON.
• Court: South Dakota Supreme Court

24 N.W.2d 327

71 S.D. 342

NELSON v. NELSON.

Nos. 8845, 8855.

Supreme Court of South Dakota

September 16, 1946

Rehearing Denied Oct. 21, 1946. [Copyrighted Material Omitted]

Odin R. Davis, of Sioux Falls, for appellant.

Louis H. Smith, of Sioux Falls, for respondent.

SICKEL, Judge.

This is an action for alimony. Plaintiff and defendant were married in this state in 1910. They lived together on a farm, and later in Sioux Falls, until some time in October 1941 when plaintiff left her husband in Sioux Falls and went to live with a daughter in California. On August 7, 1943, she commenced an action for divorce and alimony in the Superior Court of California. Defendant was served with process by publication and made no appearance in the action. On December 3, 1943, an interlocutory decree of divorce was granted, but no division of property and no provision for plaintiff's support was made in the decree, on the ground that the court had no jurisdiction to divide or otherwise dispose of defendant's property. Plaintiff then brought this action against defendant in the circuit court of Minnehaha county asking for a division of the property held by the defendant in this state. The judgment of the circuit court awarded her $10,000. Defendant appealed on the ground that plaintiff was entitled to nothing, and plaintiff appealed on the ground that the award was not large enough.

Defendant contends that the circuit court of Minnehaha county had no power to make a division of property under the circumstances of this case. The great weight of authority is to the effect that where a divorce has been granted to the wife, in another state, on substituted service, and where the husband has made no appearance in the action and has no property in that state, the court granting the divorce has no jurisdiction to award alimony. Under such circumstances the decree of divorce is not res judicata of the subject of alimony. Neither is the subject of alimony an incident to divorce, and it necessarily follows that the right to alimony may be asserted in a separate action in the state where the husband resides and where he has his property. Boens v. Bennett, 20 Cal.App.2d 477, 67 P.2d 715; Darnell v. Darnell, 212 Ill.App. 601; Woods v. Waddle, 44 Ohio St. 449, 8 N.E. 297; Spradling v Spradling, 74 Okl. 276, 181 P. 148; Adams v. Abbott, 21 Wash 29, 56 P. 931; Buckley v. Buckley, 50 Wash. 213, 96 P. 1079, 126 Am.St.Rep. 900; Annotation 42 A.L.R. 1389. In this case the evidence shows that plaintiff sued for divorce in the California courts; that defendant was served by publication; that he made no appearance in the action; that he resided in the State of South Dakota where all his property was located; that plaintiff petitioned the California court for alimony, and that the court refused to grant it for lack of jurisdiction over the person of defendant. Under these facts the plaintiff was entitled to bring this action in the circuit court of Minnehaha county.

The pleadings and the proceedings at the trial of this action show that plaintiff based her claim for a division of property on two grounds: First, the agreement; second, the right to alimony. She alleged and introduced evidence to prove that defendant agreed to give her half of all property belonging to him or in his possession if she would go to California and obtain an interlocutory decree of divorce without asking for any alimony or support money, or for any property settlement, and that he would make the transfers of property as soon as possible after the decree of divorce was granted. Defendant denied this testimony. He says that the evidence is insufficient to justify the finding that such a contract was made; that the contract, if made, was not in writing, that it was against public policy, that it was breached by plaintiff in asking for a division of property in the divorce action. The circuit court found that the agreement was made substantially as claimed by plaintiff. The court also found in this case that defendant was the owner of property of the value of $30,000. The court awarded to plaintiff the sum of $10,000, not because she owned such an interest in the defendant's property, nor because of the agreement claimed by the plaintiff, but as an equitable award of alimony payable in gross. So long as the award is not based upon the oral agreement, it is immaterial whether the agreement was made, or whether it was valid so far as the division of property is concerned. A court is not bound by such an agreement 'and may adopt or reject it as seems consistent and proper.' Shoop v. Shoop, 58 S.D. 593, 237 N.W. 904, 907.

It is also claimed that the divorce was obtained by fraud. In support of this contention the defendant argues that the oral agreement referred to above, if made, was a collusive contract for the dissolution of the marriage. Collusion is one of the grounds for denying a divorce. Civ.Code Cal. § 111; SDC 14.0713. Collusion is defined as follows: 'Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce.' Civ.Code of Cal. § 114; SDC 14.0715. This statute was considered by this court in Burgess v. Burgess, 17 S.D. 44, 95 N.W. 279, 281. In that case the facts were that a plaintiff and defendant entered into a stipulation whereby the defendant promised to convey land to the plaintiff. Defendant objected to the introduction of the agreement in evidence on the ground of collusion. The court said: 'The law of this state expressly permits contracts between husband and wife with respect to the property of each, but forbids certain agreements, as collusive, which are intended to alter or to promote the dissolution of the relation of husband and wife. Contracts relating to alimony are being constantly made and enforced, while agreements which contravene the policy of the law in relation to granting divorces are everywhere regarded as illegal. To which class does the contract in this action belong? * * * The plaintiff was not asked to commit, or to appear to have committed, or to be represented in court as having committed, any act constituting a cause for divorce. She was not asked to refrain from appearing in the contemplated action for divorce, nor does it appear that she ever agreed to refrain from making a defense. It is true that she did not appear, relying, as she had a right to, on the defendant's express promise, and was thus deprived of an opportunity to have her property rights and the property rights of her daughter determined by the court. But it does not affirmatively appear, and we think it cannot be inferred, that she made any agreement as a consideration of receiving the land, which, if shown, would have required the court to deny her husband a divorce on the ground of collusion. We think the transaction can and should be regarded as an agreement merely affecting property rights, and not as one which contravenes the policy of the law, or which was otherwise contrary to good morals.'

Here there is no finding of fact to the effect that the agreement was in any way intended to alter or promote the dissolution of the marriage. There was no agreement for the commission of any act by the defendant, constituting a cause for divorce, for the purpose of enabling the plaintiff to obtain it. There was no agreement that d...