Schriock v. Schriock

• Decision Date: 23 March 1959
• Docket Number: No. 7782,7782
• Citation: 95 N.W.2d 577
• Parties: Lorentine SCHRIOCK, Plaintiff and Respondent, v. William SCHRIOCK, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 577

95 N.W.2d 577

Lorentine SCHRIOCK, Plaintiff and Respondent, v. William SCHRIOCK, Defendant and Appellant.

No. 7782.

Supreme Court of North Dakota.

March 23, 1959.

Syllabus by the Court

1. The requirements of the full faith and credit clause, Art. IV, Section 1, U. S. Constitution bar the defendant from attacking collaterally on jurisdictional grounds a divorce decree rendered by an Oregon court of competent jurisdiction where there was participation by the defendant in the divorce proceedings, where he was accorded full opportunity to contest the jurisdictional issues, and where the divorce decree is not susceptible to collateral attack in the courts of Oregon.

2. The plaintiff in the instant case brought action to establish in this state a decree of absolute divorce rendered by the Circuit Court of Clackamas County, State of Oregon. Plaintiff was awarded custody of the minor children and alimony payable monthly for support of plaintiff and minor children. In the divorce action defendant employed counsel, answered, placing in issue plaintiff's residence in Oregon, and challenged the decree of divorce on jurisdictional grounds. He had due notice of the trial but failed to appear personally or by counsel. The defendant had full opportunity to litigate the issues of residence and jurisdiction in the Oregon court and that court having determined those issues its judgment is entitled to full faith and credit under Art. IV, Sec. 1 of the Federal Constitution, and is not subject to collateral attack in the courts of this State.

3. An answer to plaintiff's complaint alleging as a defense the pendency of another action between the same parties, involving the same subject matter, presents matter in abatement and not a bar to the cause of action alleged in the Complaint where the other action was dismissed without prejudice.

Waldron & Kenner, Minot, for appellant.

Ilvedson, Pringle, Herigstad & Meschke, Minot, for respondent.

SATHRE, Chief Justice.

This is an action by Lorentine Schriock, plaintiff v. William Schriock, defendant to establish in this state a judgment rendered by the circuit court of the State of Oregon, for the County of Clackamas on the 20th day of November, 1946, granting plaintiff an absolute divorce from the defendant, awarding plaintiff custody of their three minor children, and requiring the defendant to pay $150 a month for support of plaintiff and the minor children, to be paid to the County Clerk of Clackamas County, Oregon. The judgment further required the defendant to pay to the plaintiff $150 attorneys fees and $35 court costs.

On September 15, 1956, the Judge of the Circuit Court of the State of Oregon for the County of Clackamas made an order for renewal of said judgment which order provides that:

'It is hereby ordered that the judgment in the above entitled suit rendered and entered on the 20th day of November, 1946, together with the obligation of the defendant therein for periodic payments pursuant thereto be and the same is hereby renewed, and it is further ordered that a new entry of said judgment be made forthwith in the judgment docket in the above entitled court.'

Plaintiff's exhibit No. 1 consists of exemplified copies of the judgment, pleadings, citations and other pertinent documents and order for renewal of the judgment.

The complaint in the instant action alleges the facts which resulted in the Oregon judgment, that said judgment so rendered has become final and has never been vacated, modified or set aside, and that the plaintiff has not remarried and is still single; that since the rendition of the judgment and decree in the Oregon court the defendant has moved from the State of Oregon and has become and is now a resident of the State of North Dakota.

The complaint further alleges that the amounts adjudged to be paid to the plaintiff by the Oregon judgment have not been paid by the defendant, and that he has failed, refused and neglected to pay the same and that there is due and owing upon said judgment the sum of $18,035.

In his amended answer the defendant admits that a decree of divorce was granted by the Oregon court, but denies that plaintiff was a resident of the State of Oregon or that she was entitled to a divorce. The answer further alleges that there is another action pending between the parties in Burleigh County, brought by the same plaintiff and involving the same subject matter as the instant action, that answer was served, and that the said action has not been dismissed. The answer then denies each and every other allegation in the complaint and specifically denies that defendant owes the amount claimed in plaintiff's complaint, and demands judgment for dismissal of plaintiff's cause of action.

At the trial of the instant case the defendant sought to introduce evidence that the plaintiff was not a legal resident of Oregon at the time of the rendition of the divorce judgment. He also sought to introduce evidence of misconduct on the part of the plaintiff as a defense to the divorce action in Oregon, and that the plaintiff had no valid grounds for divorce. The plaintiff objected to such testimony on the grounds that it was an attempt to attack collaterally the Oregon judgment; that by his answer in that action the defendant placed in issue the question of the plaintiff's residence in the State of Oregon; that the Oregon court duly considered the question of residence and found that the plaintiff was a legal resident of that state; that the judgment of the Oregon court is regular on its face and is not subject to collateral attack and is entitled to full faith and credit under the Constitution of the United States.

The trial court sustained the objection, and the defendant thereupon made offers of proof of the facts sought to be established by the testimony offered as above set forth. The plaintiff objected to the offers of proof upon all of the grounds urged against admission of the evidence offered by the defendant, and on the further ground that the defendant appeared in the divorce action, employed counsel and joined issue therein, and that the Oregon judgment is regular on its face and not subject to collateral attack.

The trial court sustained the objection and excluded all evidence except as to payments made or due upon the Oregon judgment. At the close of all of the testimony both parties made motions for directed verdicts, which motions were denied, and the case was submitted to the jury on the single question as to the amount of the balance due on the Oregon judgment.

The jury returned a verdict in favor of the plaintiff in the sum of $13,000 and judgment was entered upon the verdict.

The defendant appealed from the judgment and demanded a trial de novo in this court.

It is the contention of the defendant-appellant that the trial court erred in the following particulars:

1. In refusing to dismiss the action on the grounds that another action was pending between the same parties on the same subject matter and which had not been dismissed.

2. In refusing to permit the defendant-appellant to introduce evidence of misconduct on the part of the plaintiff as a defense to the divorce action brought by the plaintiff in the State of Oregon; in refusing testimony of the defendant as to plaintiff's residence in the State of Oregon;

3. In denying plaintiff's offer of proof of facts sought to be introduced, and in limiting the defendant's proof to payments made or due upon the Oregon judgment.

With reference to specification 1, it is admitted that the plaintiff had commenced an action in Burleigh County against the defendant on the same subject matter; but said action was voluntarily dismissed by the plaintiff prior to the trial of the instant action. Plaintiff introduced in evidence exhibit 4, a certificate of the Clerk of the District Court of Burleigh County, North Dakota, certifying that said action was voluntarily dismissed by the plaintiff and filed by the Clerk of said court on the 16th day of January 1957. The dismissal was made under the provisions of Section 28-0801, NDRC 1943, which provides:

'A civil action, without a final determination of its merits, may be dismissed:

'1. By the plaintiff at any time before trial if a provisional remedy has not been allowed, nor a counterclaim made, nor affirmative relief demanded in the answer, but not more than one action on the same cause of action against any defendant * * * or an order of the court on notice and cause shown; * * *.'

In the case of Plott v. Kittelson, 58 N.D. 881, 228 N.W. 217, the defendants alleged in their answer that there was another action pending between the same parties in the same court for the same cause, and also answered on the...