Smith v. South, 5883

• Decision Date: 18 May 1955
• Docket Number: No. 5883,5883
• Citation: 1955 NMSC 44,59 N.M. 312,283 P.2d 1073
• Parties: Lottie SMITH, Plaintiff-Appellant, v. Bryan SOUTH, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1073

283 P.2d 1073

59 N.M. 312

Lottie SMITH, Plaintiff-Appellant, v. Bryan SOUTH, Defendant-Appellee.

No. 5883.

Supreme Court of New Mexico.

May 18, 1955.

Dee C. Blythe, Clovis, for appellant.

Mears & Mears, Portales, for appellee.

COMPTON, Chief Justice.

The parties were divorced on May 12, 1945, in the State of Washington. The decree awarded the care, custody and control of their minor child to appellant and directed appellee to pay $30 monthly for her support. Subsequently, they established residence in New Mexico, and appellant, having remarried, brought this action to collect $870, arrearages allegedly due her under the decree of the Washington Court. Shortly thereafter, on June 8, 1949, the parties entered into an agreement which expressly provides that appellant waives her claim to any amount previously due for child support under the Washington judgment, and that custody of the child be given to appellee each year during the school term. It also provides that during June, July and August the mother was to have her custody and appellee was to pay $25 per month for her support. On the same day the agreement was presented to and approved by the court. Later, on April 14, 1954, plaintiff filed a motion to set aside the agreement and to enforce the decree of the Washington Court. The motion alleges that appellee had then defaulted to the extent of $3,490. She further alleges that the agreement was induced by fraud and that there had been a failure of consideration. As an alternative, she sought reimbursement in the amount of $3,000 for money which had been expended by her in the support of the child while appellee was in default. Defendant answered, denying the material allegations. He alleges that he complied with all the terms of the agreement; that on or about June 1, 1951, he sent the child to her mother in Florida; that thereafter appellant changed her address and that he was unable to locate them; that he had no knowledge of their whereabouts until the child telephoned him from Houston, Texas, and that he sent funds for her; that at all times he has shown proper parental care toward the child; that on February 15, 1954, appellant arbitrarily assumed full time custody of her. He then prayed that custody be awarded to him. At the conclusion of the hearing on the merits, the court made the following findings and conclusions:

'Findings of Fact

'1.

'That the plaintiff and defendant were divorced by final decree of the Superior Court of the State of Washington, in and for the County of Clark, on May 12, 1945; that pursuant to the terms of the interlocutory decree made by said Court on June 23, 1944, the legal custody of the minor child of the parties, Bonita South, was granted to the plaintiff, that defendant was to pay the sum of $30.00 per month for the support of said child.

'2.

'That on or about May 24, 1949, the plaintiff filed a complaint in this Court praying the Court to render judgment to plaintiff for the sum of $870.00, alleged to be due and owing plaintiff for accrued support under the terms of the Washington decree and for an award of $100.00 per month for the future support of said minor child; that plaintiff was represented by competent counsel in said action; that as a result of the filing of said complaint the parties voluntarily, in good faith, and for a sufficient monetary consideration paid to plaintiff, entered into an agreement concerning the custody and support of the said Bonita South; that said agreement was accepted, approved, and subscribed by both parties, and approved by counsel for plaintiff on June 8, 1949, and that said agreement was then approved by order of this Court on June 8, 1949.

'3.

'That on the ___ day of _____, 1954, Bonita South was found by the Juvenile Court of the Ninth Judicial District, State of New Mexico, to be a juvenile delinquent and was on the same day made a ward of said Court.'

'Conclusions of Law

'1.

'That this Court has jurisdiction of the persons and subject matter involved herein.

'2.

'That the agreement entered into between the parties on June 8, 1949, was a valid and binding contract, and said agreement become the order of this Court, in all respects the same as though fully set out, on June 8, 1949, when it was approved as the judgment and order of this Court.

'3.

'That the best interests of Bonita South require that she be placed in a private boarding school at the cost of the defendant.'

Appellant challenges first the jurisdiction of the trial court to make the order of June 8, 1949, and next, the validity of the order since the agreement was not incorporated therein. That the Washington judgment is entitled to the full faith and credit provision of the Federal Constitution, art. 4, Sec. 1, cannot be questioned, but it is res judicata only as to points and matters of fact in issue in that cause and which were essential to a decision. Hollingsworth v. Hicks, 57 N.M. 336, 258 P.2d 724; Adams v. Cox, 55 N.M. 444, 234 P.2d 1043; Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636, 142 A.L.R. 1237. We held in Adams v. Cox, supra, that to make matters res judicata, there must be an identity of subject matter, causes, parties, character of persons for and against whom claim is made. While the parties are the same, obviously, there is neither identity of subject matters nor causes. Having invoked the jurisdiction of the New Mexico Court and asserted a willingness to be bound thereby, appellant is in no position to complain.

While it would have been better practice to incorporate into the order the stipulation upon which the order was based, nevertheless, the order is equally effective as if it had been done. In Emrich v. McNeil, 75 U.S.A.pp.D.C. 307, 126 F.2d 841, 843, 146 A.L.R. 1146, commenting upon the failure of the trial court to incorporate into the decree the agreement of the parties, the court said:

'It may be observed in passing that it would seem to be better practice--if the court approves such a stipulation--that it should be incorporated into the decree itself. But, even though this was not done in the present case, no reason appears for denying, to the stipulation, equal effectiveness as if it had been done; at least so long as, and to the extent that, it received the tacit approval of the court and was carried out by the parties. It was the duty of the court to act for the protection of the child and the situation is one, consequently, in which it is proper to assume that its official duty was performed.'

The annotator at 154 A.L.R., Sec. 11 a(1), p. 449, summarizes the holdings of the courts, as follows:

'By the great weight of authority, the mere fact that a provision in a decree of divorce ordering the payment of alimony or support is made pursuant to the consent or agreement of the parties, or adopts or incorporates the provisions of their agreement as to the liability for and amount of such alimony or support, is no defense to a charge of contempt of court predicated upon failure to comply with such provision of the decree, it being generally considered that the court's order, although adopting the provisions of the parties' agreement, is, if otherwise a valid order for alimony or support, just as enforceable by contempt proceedings as an order for alimony which is made after a contest upon that issue without any agreement or consent of the parties.'

Concerning child custody, the Washington decree is not conclusive for all time. In this jurisdiction, the welfare of the child, wherever it may be found, is the controlling consideration and the courts will not hesitate to exercise its jurisdiction if warranted by changing circumstances. State ex rel. Hockenhull v. Marshall, 58 N.M. 286, 270 P.2d 702; Bassett v. Bassett,56 N.M. 739, 250 P.2d 487; State ex rel. Day v. Parker, 55 N.M. 227, 230 P.2d 252; Cook v. Brownlee, 54 N.M. 227, 220 P.2d 378; Mylius v. Cargill, 19 N.M. 278, 142 P. 918, L.R.A.1915B, 154.

The next question requires a remand of the cause because the court failed to make specific findings and conclusions on a material issue. Whether appellee had defaulted in support payments pursuant to the order of the court, dated June 8, 1949, was a question left undetermined. Appellant testified that appellee was in default; conversely, appellee testified that he had promptly made all payments required of him....