Simonton v. Simonton

• Decision Date: 12 May 1925
• Citation: 40 Idaho 751,236 P. 863
• Parties: ANNA STACIA SIMONTON, Appellant, also Plaintiff and Respondent, v. SARAH E. SIMONTON, Administratrix of the Estate of ROLVIN D. SIMONTON, deceased, Respondent, also Defendant and Appellant
• Court: Idaho Supreme Court

236 P. 863

40 Idaho 751

ANNA STACIA SIMONTON, Appellant, also Plaintiff and Respondent, v. SARAH E. SIMONTON, Administratrix of the Estate of ROLVIN D. SIMONTON, deceased, Respondent, also Defendant and Appellant

Supreme Court of Idaho

May 12, 1925

JUDGMENTS-COLLATERAL ATTACK-SUFFICIENCY OF AFFIDAVIT-SERVICE BY PUBLICATION-DIVORCE-SUPPORT OF CHILDREN-SEPARATE MAINTENANCE - TERMINATION OF LIABILITY - NECESSITY FOR MODIFICATION OF DECREE.

1. The attack upon a judgment is collateral if the action or proceeding has an independent purpose and contemplates some other relief or result than the mere setting aside of the judgment, although the setting aside of the judgment may be necessary to secure such independent purpose.

2. Affidavit of summons and complaint examined and held to be sufficient under the Washington statute.

3. A showing that defendant did not receive a copy of the summons was not a showing that summons was not published or mailed hence not a sufficient showing that summons was not published or mailed, hence not a sufficient showing to establish want of jurisdiction for want of legal service.

4. A subsequent decree of divorce on constructive service does not end the husband's obligation under, or the enforceability of, a prior decree for separate maintenance of wife and minor children, where the separate maintenance decree was not modified by court action and such obligation may be enforced against the husband's estate after his death for instalments due up to the time of his death.

5. A valid judgment for the support of wife and minor children until modified by court action is enforceable according to its terms.

6. Where a wife secured a decree for separate maintenance upon personal service and the husband later in another jurisdiction, without bringing the former decree to the attention of the latter court, on substituted service secured a divorce, and never paid the maintenance decree or any portion thereof, the decree for separate maintenance will continue in full force and effect until directly modified, and where the former husband dies before such modification, the past due and unpaid instalments of separate maintenance falling due within the period of the statute of limitations and up to the time of his death may be enforced by the former wife against the deceased husband's estate.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action for money judgment. Judgment for plaintiff. Affirmed in part and modified in part.

Judgment of the trial court sustained except as to awarding of costs in the lower court, reversed as to that portion of the decree.

Benjamin F. Tweedy, for Appellant.

Where the record shows a noncompliance with the statutes as to proof and the things to be done to authorize publication of a summons, the judgment upon collateral attack will be held to be absolutely void. (People v. Greene, 74 Cal. 400 5 Am. St. 448, 16 P. 197; Harris v. Sargeant, 37 Ore. 41, 60 P. 608; Campbell Printing Press etc. Co. v. Marder Luse & Co., 50 Neb. 283, 61 Am. St. 573, 69 N.W. 774.)

"But where the attempted service does not reach the defendant at all, there is no service, and the proceedings are void." (Campbell Printing Press etc. Co. v. Marder Luse & Co., supra.)

Where there has been a flagrant, wilful and intentional concealment of the facts from the court and denial of opportunity to defend, there is such a fraud practiced to obtain a judgment that courts, upon collateral attack, will vacate the judgment as being absolutely void and fraudulent. (Ward v. Town of Southfield, 102 N.Y. 287, 6 N.E. 660; Glover v. Brown, 32 Idaho 426, 184 P. 649; Nicholson v. Leatham, 28 Cal.App. 597, 153 P. 965, 155 P. 98; Brown v. Trent, 35 Okla. 164, 128 P. 895; Liebhart v. Lawrence, 40 Utah 243, 120 P. 215; Wagner v. Beadle, 82 Kan. 468, 108 P. 859; Campbell-Kawannanahoa v. Campbell, 152 Cal. 201, 92 P. 184; Venner v. Denver etc. Co., 40 Colo. 212, 122 Am. St. 1036, 90 P. 623; Donovan v. Miller, 12 Idaho 600, 88 P. 82, 9 L. R. A., N. S., 524; Parsons v. Weis, 144 Cal. 410, 10 Ann. Cas. 444, 77 P. 1007.)

Where the action is to recover money, the statute, as of course, awards costs to the plaintiff, recovering the money judgment, and denies all costs to the judgment debtor. (C. S., sec. 7207; 11 Cyc. 28; Printz v. Brown, 31 Idaho 443, 174 P. 1012; Rhodenbaugh v. Stingel, 31 Idaho 594, 174 P. 604; McArthur v. John McArthur Co., 39 Cal.App. 704, 179 P. 700; Nowogroski v. Southworth, 100 Wash. 336, 170 P. 1011; Northern California Power Co. v. Waller, 174 Cal. 377, 163 P. 214; Stimson etc. Co. v. Lemoore etc. Co., 31 Cal.App. 396, 160 P. 845; Empire State Surety Co. v. Moran Bros. Co., 71 Wash. 171, 127 P. 1104; Nation v. Littler, 59 Kan. 773, 52 P. 96; Havens v. Dale, 30 Cal. 547; Rand v. Wiley, 70 Iowa 110, 29 N.W. 814; Meskimen v. Day, 35 Kan. 46, 10 P. 14; Phipps v. Taylor, 15 Ore. 484, 16 P. 171.)

James E. Babb, for Respondent.

Where a formal marriage is proven, as here, between deceased and defendant "the presumption . . . . in favor of the validity of the marriage includes a presumption equally strong, that whatever impediments may have existed . . . . had been removed" and "casts the burden" upon plaintiff "to show by clear, cogent and satisfactory evidence . . . . that he had obtained no divorce from his former spouse." (Smith v. Smith, 32 Idaho 478, 185 P. 67.)

It is not necessary that there be any findings of service on defendant as a basis of conclusive presumption on collateral attack. (23 Cyc. 1085, and cases cited.)

But here the court expressly found in its findings "That said defendant has made default in said action," and both recites and adjudges the default in the decree, and a finding of a default is a finding of service. ( Sacramento Bank v. Montgomery, 146 Cal. 745, 81 P. 138; Harpold v. Doyle, 16 Idaho 694, 102 P. 165.)

And the presumptions are the same where service is by publication as where it is personal. (Harpold v. Doyle, supra; McHatton v. Rhodes, 143 Cal. 275, 101 Am. St. 125, 76 P. 1036.)

"In a collateral attack on the judgment, the want of jurisdiction to render the judgment must appear upon the face of the judgment-roll, otherwise the presumption is in favor of the validity of the judgment." (O'Neill v. Potvin, 13 Idaho 721, 93 P. 20, 257.)

"Where complainant in a suit to secure separate maintenance or an interest in defendant's property seeks to have a decree for a divorce previously rendered declared of no effect, the attack on such decree is collateral, and she cannot maintain the suit on the ground of fraud of defendant in obtaining the decree, since fraud in procuring a judgment cannot be shown by the parties thereto in a collateral proceeding." ( Peyton v. Peyton, 28 Wash. 278, 68 P. 757; Donovan v. Miller, 12 Idaho 600, 10 Ann. Cas. 444, 88 P. 82, 9 L. R. A., N. S., 524.)

The Washington statute does not require that place of residence be stated (sec. 4877, 2 Ballinger's Ann. Codes), and only requires mailing of summons, etc., "to defendant's place of residence," and the affidavit in the Pasco record states it was so mailed. (Dorian v. Dorian (Okl.), 222 P. 676.)

Deceased's deed to defendant of the Clarkston property converted it into separate property of deceased according to law of all community states. (21 Cyc. 1665, and cases cited.)

When the minor children came of age, for whose support with the mother the order sued upon was made, the order ceased to be operative, and the judgment below for instalments thereafter should be reversed. (Evans v. Evans, 116 Wash. 460, 199 P. 764; Boehler v. Boehler, 125 Wis. 627, 104 N.W. 840.)

"The liability under the decree is terminated by the child's attaining majority." (19 C. J. 360; Tremper v. Tremper, 39 Cal.App. 62, 177 P. 868; Young v. Young, 179 Iowa 1259, 162 N.W. 617; Snover v. Snover, 13 N.J. Eq. 261; Kuether v. Kuether, 174 Wis. 538, 183 N.W. 695.)

The order for separate maintenance is based upon the status growing out of the relationship between husband and wife living separate and apart, so that death of either or remarriage or dissolution of the relation by divorce decree of necessity terminates the payments under such an order. ( McCullough v. McCullough, 203 Mich. 288, 168 N.W. 929; Bushnell v. Cooper, 289 Ill. 260, 124 N.E. 521, 6 A. L. R. 1517; Zanone v. Sprague, 16 Cal.App. 333, 116 P. 989; Spradling v. Spradling, 74 Okla. 276, 181 P. 148; McKannay v. McKannay (Cal. App.), 230 P. 214.)

GIVENS, J. Wm. E. Lee and Budge, JJ., concur. TAYLOR, J., Dissenting.

OPINION

GIVENS, J.

Anna Stacia Simonton, appellant in one appeal and respondent in another, both appeals being considered here together, and Rolvin D. Simonton, deceased, were married in Michigan, February 9, 1869. In November, 1893, in Kootenai county, Idaho, Rolvin D. Simonton brought suit for divorce, which was denied, and on Anna Stacia Simonton's cross-action she was awarded $ 15 per month for the support of herself and two minor children. In October, 1898, in Franklin county, Washington, on service by publication, Rolvin D. Simonton secured a default divorce, and in December, 1901, at Moscow, Idaho, married Sarah E. Simonton, with whom he thereafter lived until his death, December 8, 1915.

On January 11, 1917, Anna Stacia Simonton commenced the present action, now against Sarah E. Simonton, administratrix of the estate of Rolvin D. Simonton, deceased, for the delinquent maintenance money, to establish her rights as the surviving widow of Rolvin D. Simonton, to discover assets alleged to belong to the estate of Rolvin D. Simonton, and especially to recover $ 1,500 received by Sarah E. Simonton, August 3 1916, from Thomas J. Travis, the purchaser of a...