Weller v. Weller

• Decision Date: 10 February 1971
• Docket Number: CA-CIV,No. 2,2
• Citation: 480 P.2d 379,14 Ariz.App. 42
• Parties: Marie WELLER, Appellant, v. Paul J. WELLER, Appellee. 863.
• Court: Arizona Court of Appeals

Page 379

480 P.2d 379

14 Ariz.App. 42

Marie WELLER, Appellant, v. Paul J. WELLER, Appellee.

No. 2 CA-CIV 863.

Court of Appeals of Arizona, Division 2.

Feb. 10, 1971.

Rehearing Denied March 11, 1971.

Review Denied April 6, 1971.

Bernard I. Rabinovitz and Lawrence Ollason, Tucson, for appellant.

Silver, Ettinger & Karp by Jack A. Ettinger and Gene Karp, Tucson, for appellee.

KRUCKER, Chief Judge.

Appellant, plaintiff below, filed a complaint in superior court asserting three claims for relief: (1) separate maintenance, (2) reimbursement for sums expended for her past support, and (3) reimbursement for sums expended by her for child support. The responsive pleading of appellee, defendant below, alleged that a marital status no longer existed, and that the plaintiff's claims were barred; as to the first claim, by laches, res judicata and collateral estoppel; as to the second and third, by the statute of limitations.

The defendant subsequently filed a motion for summary judgment in his favor on the ground that all three counts were barred by the doctrine of res judicata and collateral estoppel, that counts two and three were barred by the statute of limitations, and, further, that 'there is no cause of action or liability for past support to the plaintiff, either as or for child support or support of herself.' The defendant's motion for summary judgment was granted and from the judgment in his favor this appeal was prosecuted. Plaintiff contends that factual issues were presented, hence summary judgment was improper.

The major thrust of defendant's motion for summary judgment was that a prior Arizona superior court ruling in a reciprocal support proceeding operated as a bar to this action.

In December, 1967, the plaintiff filed a verified petition in Family Court of the State of New York as provided in the New York State Uniform Support of Dependents Law. ¹ The petition alleged, inter alia, that plaintiff was the wife of defendant, having been married on or about December 26, 1942, in the State of New York; that the defendant on or about 1947 and subsequent thereto, refused and neglected to provide support for plaintiff; that the defendant was residing in Tucson, Arizona, and that plaintiff was in need of and entitled to support from defendant. Appended thereto was certain sworn testimony of the plaintiff as to these facts. The appropriate New York procedure followed, with the papers being forwarded to Arizona as the responding state. ²

The superior court issued a show cause order directed to the defendant (respondent in the reciprocal support proceedings), and a hearing thereon was duly held. The plaintiff was not present but the defendant was. Plaintiff was represented by a member of the County Attorney's staff and defendant was represented by retained counsel. Counsel stipulated that if the defendant was called he would testify to the fact that he obtained a divorce on May 31, 1947, in Chihuahua, Mexico. A photocopy of the Mexican divorce decree and the English translation thereof were admitted in evidence without objection, as was a photocopy of a letter and an envelope addressed to the plaintiff, post-marked June 18, 1947. The minute entry reflects that the defendant was sworn and examined, and that one Helene T. Weller, apparently defendant's second wife, was sworn, examined, questioned by the court, and cross-examined. The superior court thereupon ordered that the plaintiff's petition for support be dismissed and directed preparation of a formal, written order. The formal order prepared in accordance with this direction, recites:

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:

1. That the plaintiff, MARIE WELLER, also known as Marie Harrison, be and hereby is found guilty of laches and is estopped from denying the validity of the Decree of Divorce entered on May 31, 1947 in Chihuahua, Mexico.

2. That the Petition For Support herein is denied and is dismissed.'

The foregoing order in the reciprocal support proceedings was the predicate for the motion for summary judgment in the instant case, i.e., the plaintiff's right to support had already been adversely determined against her and therefore she was precluded from relitigating the issue.

Jurisdiction of an action for separate maintenance depends upon the existence of a valid marriage relationship between the parties at the time the action is instituted. White v. White, 83 Ariz. 305, 320 P.2d 702 (1958); 42 C.J.S. Husband and Wife § 615a. In granting the defendant's motion for summary judgment, the trial court apparently agreed with defendant that the plaintiff was precluded, by virtue of the reciprocal support order, from claiming the existence of marital status.

Plaintiff argues that the court, in the reciprocal support proceedings, had no 'jurisdiction' to inquire into the validity of the Mexican divorce decree. Although we agree that the duty of support is the only real issue in this type of proceeding, Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261 (1955); Commonwealth ex rel. Posnansky v. Posnansky, 210 Pa.Super 280, 232 A.2d 73 (1967); See also, Blois v. Blois, 138 So.2d 373 (Fla.Dist.Ct.App. 1962), we believe that the court, in making this determination, had to inquire into matters incidental thereto. ³

The Uniform Reciprocal Enforcement of Support Act was designed to enable a dependent in one state to initiate proceedings in the state of her domicile for the purpose of securing money for support from a person residing in another state who is legally liable for the support of such dependent. Lambrou v. Berna, 154 Me. 352, 148 A.2d 697 (1959); Rymanowski v. Rymanowski, 249 A.2d 407 (R.I.1969). The remedies provided by this Act are in addition to and not in substitution for any other remedies. A.R.S. § 12--1653. Therefore, the doctrine of election of remedies did not operate to bar the plaintiff's separate maintenance action. Greggo v. Greggo, 41 Del.Ch. 289, 194 A.2d 58 (1963); Figliozzi v. Figliozzi, 173 A.2d 904 (D.C.Mun.Ct. 1961). The only question is whether the reciprocal support order is binding upon the parties in this separate maintenance action. We are of the opinion that it is not.

The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action In a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Lauderdale v. Industrial Commission, 60 Ariz. 443, 139 P.2d 449 (1943); Di Orio v. City of Scottsdale, 2 Ariz.App. 329, 408 P.2d 849 (1965). We stated in Garrett v. Holmes Tuttle Broadway Ford, 5 Ariz.App. 388, 427 P.2d 369 (1967):

'No concept is more essential to the efficacy of the judicial process than that of res judicata. If the judicial process is not to put an end to controversy, with finality, it has no purpose whatsoever. The doctrine, however, must not be extended so far as to deprive persons of their day in court or so rigidly as to defeat the ends of justice. (Citations omitted)' 5 Ariz.App. at 390, 427 P.2d at 371.

See also, Burrell v. Southern Pacific Company, 13 Ariz.App. 107, 474 P.2d 466 (1970).

Proceedings under the Uniform Reciprocal Enforcement of Support Act are purely statutory and the jurisdiction of the superior court, although it is a court of general jurisdiction, is circumscribed by the provisions of the Act which confers jurisdiction to determine support matters. State ex rel. Schwartz v. Buder, 315 S.W.2d 867 (Mo.App.1958); cf. Vargas v. Greer, 60 Ariz. 110, 131 P.2d 818 (1942); Shattuck v. Shattuck, 67 Ariz. 122, 192 P.2d 229 (1948); In re Estate of Jones, 10 Ariz.App. 480, 460 P.2d 16 (1969). Consequently, the superior court, when acting under the provisions of the Uniform Support Act, is not acting as a court of general jurisdiction.

When a court of limited jurisdiction determines a matter incidental to the exercise of its jurisdiction, and it would have no jurisdiction to directly determine the matter in an action brought expressly for such determination, the judgment is not conclusive in a subsequent action brought in a court of general jurisdiction. See, Annot. 83 A.L.R.2d 977, and in particular § 11; 50 C.J.S. Judgments § 689 at p. 148.

The following cases are examples of application of this principle: Hickman v. Hickman, 10 Terry 568, 49 Del. 568, 121 A.2d 689 (1956), preliminary determination as to validity of divorce decree in forcible detainer action brought by husband against wife did not preclude litigation of validity of decree in subsequent divorce action instituted by wife; Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60 (1948), determination in support proceeding that husband's Mexican divorce decree was a nullity did not preclude litigation of the decree's validity in wife's subsequent action for separation; Hertzberg v. Hertzberg, 46 N.Y.S.2d 453 (N.Y.Sup.Ct.1943), adjudication by Domestic Relations Court as to existence of marital status not binding in subsequent action for declaratory judgment to the contrary. See also, Brown v. Brown, 194 Misc. 975, 87 N.Y.S.2d 105 (1949); Meenan v. Meenan, 206 Misc. 793, 135 N.Y.S.2d 412 (1954); Graham v. Graham, 43 Misc.2d 89, 249 N.Y.S.2d 899 (1964).

We hold, therefore, that the superior court's determination in the support proceedings was not conclusive as to the separate maintenance action with respect to the marital status of the parties.

Furthermore, the granting of summary judgment cannot be sustained on the basis of laches. Whether a claim is barred by laches must be determined by the facts and circumstances of each case and lapse of time alone is not controlling. Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963). We agree that laches may bar an attack on the validity of a divorce decree. Brandt v. Brandt, 76 Ariz. 154, 261 P.2d 978 (1953); Annot. 12 A.L.R.2d 153 § 7. Here, the...