Schillerstrom v. Schillerstrom
| Citation | 32 N.W.2d 106,75 N.D. 667 |
| Decision Date | 07 April 1948 |
| Docket Number | 7060. |
| Court | United States State Supreme Court of North Dakota |
Syllabus by the Court.
1. To effect a change of domicile the fact of physical presence at a dwelling-place and the intention (animus manendi) to make it a home must concur. If they do so, even for a moment the change of domicil takes place.
2. In actions for divorce, the presumption of law that the domicil of the husband is the domicil of the wife does not apply. After separation, each party may have a separate domicil, depending for proof upon actual residence and not upon legal presumptions. R.C.1943, 14-0518.
3. The record in the instant case is examined and it is held for reasons stated in the opinion that the evidence establishes that the plaintiff was in good faith domiciled in this state at the time of and prior to the commencement of this action.
4. Fraud as a ground for vacating a judgment must be what is known as 'extrinsic' fraud, that is, fraud in the means whereby the judgment was procured, and not fraud in the cause of action or matter in issue and presented for adjudication.
5. The record in the instant case is examined and it is held for reasons stated in the opinion that the evidence establishes that the plaintiff did not procure her decree of divorce through fraud.
6. In a divorce action, as well as in other classes of actions a voluntary appearance of the defendant is equivalent to personal service of the summons upon him, and in personam jurisdiction is acquired thereby even though the plaintiff is not domiciled in the State of the forum. Defendant herein entered a voluntary appearance.
7. In an action for divorce domicil is a prerequisite to jurisdiction over the specific subject matter.
8. The requirement of R.C.1943, 14-0517, that 'A divorce must not be granted unless the plaintiff in good faith has been a resident of the state for twelve months next preceding the commencement of the action,' is not a jurisdictional prerequisite in the strict sense that it limits or restricts the jurisdiction of the district court to hear the case and determine all issues in the action, including the question of plaintiff's residence. Smith v. Smith, 7 N.D. 404, 75 N.W. 783; Graham v. Graham, 9 N.D. 88, 81 N.W. 44; Smith v Smith, 10 N.D. 219, 86 N.W. 721 are qualified and distinguished.
9. N.D.Const., sec. 103, confers upon the district court exclusive original jurisdiction in actions for divorce and the power, in the exercise of such jurisdiction, to hear and determine all issues of fact and law arising in such actions. The jurisdiction so conferred is subject only to such limitations and restrictions as are prescribed by the Constitution itself.
10. 'Jurisdiction over the subject-matter' is the power of a court to hear and determine cases of the general class to which the action in question belongs.
11 R.C.1943, 14-0517 reads: 'A divorce must not be granted unless the plaintiff in good faith has been a resident of the state for twelve months next preceding the commencement of the action.' Construing this statute in harmony with Const. § 103, the statutory requirement of length or duration of domicil is not a limitation upon the jurisdiction of the District Court to 'hear and determine'; instead it is a statute merely prescribing a qualification which the plaintiff must possess before the court may 'grant' a divorce. The District Court has jurisdiction to adjudicate the issue of fact as to plaintiff's residential qualifications.
12. In an action for divorce the question of length or duration of plaintiff's domicil is one of fact to be determined from the evidence in the case.
13. In finding the facts as to duration of residence, in a divorce action, the trial judge acts within the scope of his constitutional power and if the finding be not sustained by the evidence in the case, the making of such finding, though erroneous, is not an act in excess of jurisdiction but one in the exercise thereof.
Floyd B. Sperry, of Golden Valley, and Sullivan, Fleck, Kelsch & Lord, of Mandan, for plaintiff and appellant.
G. L. Dosland, of Moorhead, Minn., and J. E. Hendrickson, of Fargo, for defendant and respondent.
On October 6, 1942, the wife, Ruth Schillerstrom, plaintiff and appellant, commenced this divorce action in the District Court of Morton County, against her husband, Duane Schillerstrom, defendant and respondent. On October 12, the Summons and Complaint were served upon the husband personally in Minneapolis, Minnesota.
The wife's Complaint alleged a sufficient cause of action for divorce, and also alleged:
'That the plaintiff is now, and has been for more than one year last past, a resident of the State of North Dakota.'
Of date October 22, the husband, by his attorney Roy E. Rendahl of Minneapolis, made an Answer, verified by the husband personally. This Anwer denied the truth of the wife's alleged cause of action and, among other allegations, contained this denial:
'Further answering, the Defendant specifically denies that the Plaintiff herein has been a resident of the State of North Dakota for a period of one year immediately last past as alleged in paragraph 2 of her Complaint.'
On October 22, Attorney Rendahl wrote to the wife's Attorney, Mr. Sperry:
'I enclose herewith Answer in the above entitled action and ask that you admit service on the original * * *.'
On October 26, Mr. Sperry replied:
'Dear Mr. Rendahl: I herewith enclose your Anwer in the above matter, with my admission of service.'
On November 9, Attorney Rendahl replied:
'I have your letter of Cotober 26, 1942, together with the stipulation and wish to advise that I have gone over this matter very carefully with Mr. Schillerstrom and the terms therein are satisfactory. * * *.'
On November 21, Attorney Rendahl wrote:
The written 'Stipulation' was signed by the parties in the presence of their respective attorneys (the wife signing in North Dakota, and the husband signing in Minneapolis), and reads as follows:
'It is therefore agreed by and between said parties as follows:
'1. That said divorce action may be brought on for trial by the plaintiff, immediately upon the execution of this stipulation, without further notice to said defendant, said defendant having answered herein, and said defendant hereby agreeing to withdraw said Answer upon the execution of this agreement,
'2. That the plaintiff have the custody of the minor child of said parties, with reasonable visitation privileges to the defendant, and that the defendant shall pay for the care and support of said child, the sum of $5.00 per week, beginning with the first day of November, 1942, said payments to be made twice monthly, upon the first and 15th days of each and every month until said child arrives at the age of 18 years of age, or until the further order of this court.
'3. That the said Duane Schillerstrom shall also pay unto the plaintiff for attorney fees and expenses herein, the sum of $12.05, as costs, and the sum of $50 for the plaintiff's attorney, and in addition he shall pay the fees and charges of his own attorney.
'4. That each of said parties shall retain the property jointly or separately owned by them, now in his or her respective possession.
'Dated November 20, 1942.
'(signed by the parties personally, and witnessed by their respective attorneys and one additional witness).'
On November 24, 1942, the trial took place before Judge Berry (who died on July 16, 1944). The wife and her corroborating witness appeared in person, with her attorney, Mr. Sperry, but neither the husband nor his attorney appeared at the trial.
Because of the interest of the State in the continuance of the marriage relation, our statutes require that, even though the defendant should default, there must be an actual trial of every divorce action, at which evidence must be presented, and that the testimony of the plaintiff must be corroborated. The statute, R.C.1943, 14-0519, reads:
R.C.1943, 28-0908 requires that:
'In divorce cases upon default, the testimony must be taken, transcribed, and filed in the office of the clerk at the expense of the producing party.'
The object of the provisions of these two statutes is to prevent the obtaining of a divorce by fraud and collusion between the parties, where no lawful ground for a divorce exists. Clopton v. Clopton, 11 N.D. 212, 91 N.W. 46; Tuttle v. Tuttle, 21 N.D. 503, 131 N.W. 460, Ann.Cas.1913B, 1; Thompson v. Thompson, 32 N.D. 530, 156 N.W. 492.
In Smith v. Smith, 7 N.D. 404, 413, 75 N.W. 783, 785, this Court said:
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