Slade v. Slade

• Decision Date: 27 April 1970
• Docket Number: No. 8934,8934
• Citation: 468 P.2d 627,1970 NMSC 64,81 N.M. 462
• Parties: Elizabeth B. SLADE, Plaintiff-Appellee, v. Donald C. SLADE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 627

468 P.2d 627

81 N.M. 462

Elizabeth B. SLADE, Plaintiff-Appellee, v. Donald C. SLADE, Defendant-Appellant.

No. 8934.

Supreme Court of New Mexico.

April 27, 1970.

Sosa, Garza & Neumeyer, Las Cruces, for appellant

Privette & Privette, Las Cruces, for appellee.

OPINION

SISK, Justice.

Plaintiff, Elizabeth Slade, filed this action on August 8, 1968, against defendant, Donald Slade, based upon a Kansas judgment for child support. The district court sitting without a jury entered judgment in plaintiff's favor for $8,087.00, plus $4,329.01 interest. Defendant appeals.

The Kansas court entered a decree of divorce on May 11, 1951, in favor of plaintiff and against defendant, and ordered defendant to pay to plaintiff $60.00 per month for the support of a minor son, until the minor became 21. The Kansas court had in personam jurisdiction over defendant although he was a resident of Missouri at the time the decree was entered. Defendant subsequently moved to Maryland, and some payments were made by defendant to plaintiff until he moved to New Mexico in April, 1961, after which no payments were made. On October 5, 1961, the son of plaintiff and defendant attained the age of 21 years.

Defendant asserts three points on appeal: 1) that our seven-year statute of limitation (§ 23--1--2, N.M.S.A.1953 (1969 Supp.)) bars recovery of any payments due under the Kansas judgment prior to August 8, 1961; 2) that said statute of limitations was not tolled by the statute pertaining to concealment or absence from the jurisdiction (§ 23--1--9, N.M.S.A.1953), or by the son's disability during his minority (§ 23--1--10, N.M.S.A.1953); and 3) that interest should not have been awarded.

Statutes of limitation are considered procedural and not substantive in nature and are governed by the law of the forum. Therefore, only the New Mexico statutes of limitation are applicable in this case. Haury v. Allstate Ins. Co., 384 F.2d 32 (10th Cir. 1967); Leonard v. Kleitz,155 Kan. 626, 127 P.2d 421 (1942); Heisel v. York, 46 N.M. 210, 125 P.2d 717 (1942). See also Annot., 36 A.L.R.2d 567, 578. Although the law favors the right of action rather than the right of limitation, In re Goldsworthy's Estate, 45 N.M. 406, 115 P.2d 627 (1941), exceptions to statutes of limitation must be construed strictly, Field v. Turner, 56 N.M. 31, 239 P.2d 723 (1952); Musgrave v. McManus, 24 N.M. 227, 173 P. 196 (1918). The Kansas judgment for periodic payments was a judgment in installments. Each payment becomes vested when due and unpaid, and the statute of limitations begins to run on that installment at the moment it vests. Fangrow v. Fangrow, 185 Kan. 227, 341 P.2d 998 (1959); Peters v. Weber, 175 Kan. 838, 267 P.2d 481 (1954); Leonard v. Kleitz, supra. Compare: In re Coe's Estate, 56 N.M. 578, 247 P.2d 162 (1952).

The applicable New Mexico statute is § 23--1--2, N.M.S.A.1953 (Supp.1969), which reads:

'Actions founded upon any judgment of any court of the state may be brought within seven (7) years from and after the rendition or revival of the judgment, and not afterward, and actions founded upon any judgment of any court of record of any other state or territory of the United States, or of the federal courts, may be brought within seven (7) years from and after the rendition of the judgment, and not afterward.'

This action was commenced on August 8, 1968, and, absent a tolling of the statute of limitations, all unpaid installments due under the Kansas judgment which accrued and became part of that judgment prior to August 8, 1961, are barred.

The trial court determined that § 23--1--9, N.M.S.A.1953, tolled the running of § 23--1--2, supra. Section 23--1--9, supra, provides:

'If, at any time after the incurring of an indebtedness or liability or the accrual of a cause of action against him or the entry of judgment against him in this state, a debtor shall have been or shall be absent from or out of the state or concealed within the state, the time during which he may have been or may be out of or absent from the state or may have concealed or may conceal himself within the state shall not be included in computing any of the periods of limitation above provided.'

Plaintiff argues extensively that our decision in In re Goldsworthy's Estate, supra, is determinative of this case. We do not agree. In Goldsworthy, causes of action in favor of the claimant had accrued against Mrs. Goldsworthy in Missouri between 1917 and 1930, and a claim based on such causes of action was filed against Mrs. Goldsworthy's estate in New Mexico in 1939. Mrs. Goldsworthy had never resided in New Mexico until three months prior to her death. This court held, under the then effective statute, the language of which was identical with § 23--1--9, supra, that the there applicable four-year statute of limitations would not commence to run until the debtor first came into New Mexico, though the cause of action had long since been barred in the state where it accrued. The decision was based upon the holding that the qualifying phrase 'in this state' after the phrase 'entry of judgment against him,' did not also refer back to the prior phrase 'accrual of a cause of action.' The crucial distinction between our case and Goldsworthy is that in Goldsworthy the New Mexico claim was based on a cause of action which had never been sued upon and reduced to judgment. In our case, the New Mexico action was based on a Kansas judgment and is controlled by § 23--1--2, supra, which clearly provides that actions founded on any judgment of any court of any other state must be brought within seven years after the rendition of that judgment. On the facts of our case, the decisive authority is not Goldsworthy but Northcutt v. King, 23 N.M. 515, 169 P. 473 (1917). There the plaintiff sued in 1913 on a Colorado judgment obtained in 1905. The seven-year statute of limitations was raised as a defense, and the plaintiff alleged that the action was not barred because the defendants had not resided in New Mexico for seven years prior to the New Mexico action and that, as alleged in the present case, the tolling statute relating to absence from the state was applicable and the seven-year statute had not run. We said in Northcutt:

'By the first ground of the motion it is asserted that the answer sets up that the action was commenced more than seven years after the rendition of the judgment on which it was predicated, and that the defendants duly pleaded the statutes of limitations, for which reason the said cause should have been dismissed * * *.

'Appellees' answer to the original complaint setting up the seven years' statute of limitations presents a complete defense to appellant's complaint under section 3347, Code 1915 (now § 23--1--2). This being a foreign judgment, the question as to whether appellant, for seven years preceding the filing of the complaint, had been absent from or living within the state was wholly immaterial, as section 3352 (now § 23--1--9), which exempts the application of the statute of limitations because of absence from the state, applied only to judgments rendered within the state. Appellant by his reply set up the fact that for the past seven years appellees had resided without the state of New Mexico. This pleading was filed evidently upon a misinterpretation of the meaning of the statute. * * *'

The holding in Northcutt that when an action in New Mexico is based on a foreign judgment it is immaterial whether the defendant had been absent from or living within the state during the preceding seven-year period has not been altered by statute or case law. Heisel v. York, supra, also relied on by plaintiff, is distinguishable on its facts. There the defendant executed a note in New Mexico in 1918, moved to Texas in 1923, and returned to New Mexico in 1940. The statute was held to have been tolled during the years defendant was in Texas, but, as in Goldsworthy, the action was on a cause of action on which suit had never been filed and was not based on a foreign judgment as in Northcutt and as in the present case. If, as stated in Northcutt, it is immaterial whether the defendant was in or out of New Mexico prior to the filing of the New Mexico action, because the exemption pertaining to absence from the state does not apply to foreign judgments, logic and rules of construction would require a holding that the other exemption, pertaining to concealment within the state, would also not apply to foreign judgments.

Even if a distinction were drawn between the two exceptions, the trial court made no finding of concealment by defendant in New Mexico and the evidence would not support any such finding.

Plaintiff was aware of defendant's location in Maryland, from which some payments were made. Defendant's Maryland employer transferred him to New Mexico and he has worked continuously in the same employment, and the fact that he made no payments after his transfer to New Mexico is not sufficient by itself to establish concealment.

At the time this action was filed against defendant, he had resided in New Mexico more than seven years. Under New Mexico law, he is liable for all sums that became due as part of the Kansas judgment within seven years prior to the filing of this action on August 8, 1968. The trial court erred...