Weesner v. Weesner

• Decision Date: 03 April 1959
• Docket Number: No. 34528,34528
• Citation: 168 Neb. 346,95 N.W.2d 682
• Parties: Kenneth O. WEESNER, Appellant-Cross-Appellee, v. Ruth WEESNER et al., Appellees-Cross-Appellants.
• Court: Nebraska Supreme Court

Page 682

95 N.W.2d 682

168 Neb. 346

Kenneth O. WEESNER, Appellant-Cross-Appellee, v. Ruth WEESNER et al., Appellees-Cross-Appellants.

No. 34528.

Supreme Court of Nebraska.

April 3, 1959.

1. A court of one state cannot directly affect or determine the title to land in another state.

2. However, a court of competent jurisdiction in one state, with all necessary parties properly before it in an action for divorce, generally has the power and authority to render a decree ordering the execution and delivery of a deed to property in another state in lieu of alimony for the wife.

3. Such an order is personam in character, and when final it is generally res judicata, bringing into operation the doctrine of collateral estoppel.

4. Thus, where all necessary parties are before a competent court in the land situs state, such an order will be given force and effect under the full faith and credit clause of the Constitution of the United States, and same may in a proper case be pleaded as a defense, or as a cause of action to enforce the obligation of the order, if the related public policy of the situs state is in substantial accord with that of the other state.

5. In that connection, the courts of this state will presume that the public policy of the other state with regard to division of real property in a divorce action is the same as our own, in the absence of a showing to the contrary.

6. In an action to quiet title, when the plaintiff's title is put in issue by the answer, he is required to establish upon the trial that he is the owner of the legal or equitable title to the property, or has some interest therein, superior to the rights of the defendant, in order to entitle him to the relief demanded.

7. If a litigant asks affirmative equitable relief, he will be required to do justice himself with regard to any equity arising out of the subject matter of the action in favor of his adversary. In other words, the maxim that 'he who seeks equity must do equity,' should be applied in suits to quiet title.

8. In an action to quiet title in this state the question of title between the parties may be fully litigated and determined and a decree rendered assigning the title to the real estate or any part of it to the party entitled thereto.

Baskins & Baskins, North Platte, for appellant.

Maupin, Dent, Kay & Satterfield, Wm. E. Morrow, Jr., George B. Dent, Jr., North Platte, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, Kenneth O. Weesner, brought this action in the district court for Lincoln County against defendants, Ruth Weesner, plaintiff's former wife, and three-named minor children of the parties, seeking to have declared void a divorce decree rendered by the district court for Goshen County, Wyoming, on September 22, 1954, insofar as same purported to directly affect and determine the title to described real property located in North Platte, Lincoln County, Nebraska, which property was allegedly owned by plaintiff and Ruth Weesner as joint tenants with right of survivorship. Plaintiff prayed for an order cancelling such portion of said decree of record in Lincoln County, quieting the title to his interest in the property, and enjoining defendants from asserting any right, title, or interest therein as against plaintiff by virtue of said Wyoming decree.

Plaintiff's amended petition alleged in substance that plaintiff and Ruth Weesner, hereinafter called defendant, were married at Stapleton, Nebraska, on April 24, 1936; that the three minor defendants were born of said marriage; that on February 23, 1943, during their marriage, the title to the property involved was conveyed to plaintiff and defendant as joint tenants with right of survivorship by warranty deed recorded March 2, 1943, in Lincoln County; and that on September 22, 1954, the Wyoming court rendered a divorce decree in an action wherein plaintiff herein was plaintiff and defendant herein was defendant and cross-petitioner. A copy of said decree, which was incorrect in some particulars, was attached to and made a part of plaintiff's amended petition filed herein.

However, an admittedly true copy of said Wyoming decree, as far as important here, disclosed the following: That on September 22, 1954, plaintiff appeared in the Wyoming court in person with his attorney, and defendant as cross-petitioner also appeared in person with her attorney, after having been regularly served with process. Evidence was adduced by plaintiff and defendant and the cause was regularly submitted. Thereupon the court found and adjudged the issues generally in favor of defendant on her cross-petition and against plaintiff; that the parties were lawfully married in Nebraska on April 24, 1936, but had become legal residents of Goshen County, Wyoming; and that defendant was entitled to and was granted an absolute divorce from plaintiff, together with the custody and control of their three-named minor children with right of reasonable visitation by plaintiff. The decree then ordered plaintiff to pay to the clerk of the district court of Goshen County, Wyoming, designated monthly amounts payable semimonthly for support and care of the children, and ordered plaintiff to pay the costs, including $200 as fees for defendant's attorney. Defendant was then 'awarded the dwelling house of the parties located in North Platte, Nebraska' particularly describing same, which is admittedly the property here involved, 'provided that the Defendant * * * cannot, for a period of five years from date hereof sell or mortgage said property without Court order and provided, further, that in the event of the' defendant's 'death during said five year period, said real estate shall then become the property of the children hereinabove named in equal portions * * * that the Plaintiff * * * shall make, execute, and deliver to the Defendant * * * a Quitclaim Deed of his interest in and to the above described real estate * * * and in the event of his failure to do so this Decree shall act as a conveyance of his interest in and to said real estate to the Defendant * * *.' (Italics supplied.)

We are primarily interested here in the legal effect of only the italicized portion of said decree. In that connection, plaintiff's amended petition filed herein also alleged that on November 16, 1954, defendant recorded said decree in Lincoln County, Nebraska, but that same was of no force and effect insofar as it purported to award and convey plaintiff's interest in the aforesaid real property to defendants or any of them because the Wyoming court was without jurisdiction to directly affect or determine the title to the real estate, and that any claim thereto made by defendants casts a cloud upon plaintiff's interest in the title thereto.

Defendant's answer and cross-petition as amended, after plaintiff's demurrer to defendant's cross-petition had been sustained and she had been denied any suit money, alleged substantially the following: She admitted the marriage as alleged; admitted that on February 23, 1943, plaintiff and defendant had acquired the property as alleged; and admitted that on September 22, 1954, the decree of divorce heretofore set forth was rendered by the Wyoming court, and that same was recorded by defendant as alleged. An admittedly correct copy of the said Wyoming decree was attached to and made a part of defendant's answer and cross-petition as also was a copy of plaintiff's amended petition for divorce and defendant's answer and cross-petition thereto filed in the Wyoming court.

Defendant's amended answer and cross-petition filed herein denied generally. It then alleged that on June 8, 1954, plaintiff filed his petition, and on July 10, 1954, filed his amended petition for divorce in the Wyoming court which had jurisdiction of the subject matter; that in both said petitions plaintiff alleged that during their marriage plaintiff and defendant had acquired described personal property and a home in North Platte, Nebraska, which home is the property here involved; and plaintiff prayed for an equitable division of said property. In that connection, defendant's answer and cross-petition filed in the Wyoming court also alleged that during their marriage plaintiff and defendant had acquired said described property, set forth encumbrances thereon, and prayed for an equitable division of said property.

Also, defendant's amended answer and cross-petition filed herein alleged that plaintiff took no appeal from said Wyoming decree, which, based on said pleadings and evidence, had granted defendant an absolute divorce, division of property, and other equitable relief; that said decree had become final and res judicata; that plaintiff was now estopped to deny that said decree was void and of no force and effect as now claimed by him; and that by reason of said proceedings and plaintiff's conduct and actions in connection therewith, he was without equity in the case at bar. Defendant then alleged that the district court for Lincoln County had jurisdiction of the whole matter, and if the district court for Lincoln County found otherwise than as heretofore alleged by defendant, said court should redetermine the question of division of the property and alimony for defendant in connection therewith. Defendant further alleged that she was destitute and in poor health; and that plaintiff had failed to make the child support payments as ordered by the Wyoming decree, and had fallen in arrears about $800, which necessitated that defendant employ attorneys for the purpose of attempting to collect same. Defendant's prayer was for dismissal of plaintiff's amended petition; the rendition of a decree finding that plaintiff was without equity and was estopped to deny that the Wyoming court was without jurisdiction to award the property involved to defendant; a determination that said court's finding of ownership...