Wells v. Wells

• Decision Date: 14 February 1990
• Docket Number: No. 16626,16626
• Citation: 451 N.W.2d 402
• Parties: Dolly Mae WELLS, Plaintiff and Appellee, v. William W. WELLS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 402

451 N.W.2d 402

Dolly Mae WELLS, Plaintiff and Appellee, v. William W. WELLS, Defendant and Appellant.

No. 16626.

Supreme Court of South Dakota.

Argued Oct. 16, 1989.

Decided Feb. 14, 1990.

William Taylor of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellant.

Lawrence R. Bihlmeyer, Rapid City, for plaintiff and appellee.

SABERS, Justice.

William Wells appeals an order denying his motion to dismiss Dolly Wells' divorce action for lack of subject matter jurisdiction and lack of a case or controversy.

Facts

William and Dolly, enrolled members of the Crow Creek Tribe, were married in Pierre, Hughes County, South Dakota in 1980. They lived together on the Crow Creek Reservation in Buffalo County until April of 1987 when Dolly left the reservation with their minor children. She eventually settled in Rapid City, Pennington County, South Dakota in July of that year.

As soon as Dolly left the reservation, William attempted to start a divorce action in the Crow Creek tribal court. However, the tribal code specified that to start a divorce action a copy of the summons and complaint "must be served personally" upon the defendant. Since William did not know where Dolly went after she left the reservation, he was unable to obtain service of process to begin his divorce action. Crow Creek tribal law does not provide for personal service by publication, as South Dakota law does. SDCL 15-9-7 and -8.

In August of 1987, Dolly started divorce proceedings against William in circuit court of Pennington County. As a result, William learned the identity of Dolly's attorney and attempted to obtain service of process on her by mailing a copy of the tribal court summons and complaint to her attorney. Dolly knew her attorney received these documents, but refused to sign an admission of personal service. Nevertheless, the tribal court judge accepted this as service of process, and on November 30, 1987, entered a default divorce decree in favor of William and awarded him custody of the children.

In September of 1987, service of process in the state court action was made on William by the Buffalo County sheriff while William was on the Crow Creek Reservation. William made a special appearance in that action and challenged, among other things, the sufficiency of the service of process. The circuit court dismissed the case for insufficient service of process because the sheriff of Buffalo County had no jurisdiction to effectuate service of process on an enrolled member of the Crow Creek tribe while the member was residing in and domiciled on the reservation.

In March of 1988, Dolly started new divorce proceedings in state court (again in Pennington County). This time service upon William was obtained by a tribal policeman whose return of service stated he was an enrolled member of the Crow Creek tribe. William again specially appeared and moved to dismiss the case, asserting two separate grounds for dismissal. First, the tribal court divorce decree had already dissolved the marriage so there was no longer a case or controversy, and second, the South Dakota court lacked subject matter jurisdiction over the parties. The circuit court judge rejected both arguments. He concluded that the South Dakota court had concurrent subject matter jurisdiction with the tribal court, and the tribal court divorce decree would not be recognized as a matter of comity because it failed to comply with SDCL 1-1-25, primarily due to the failure to personally serve Dolly in accordance with the tribal code. We granted William permission to appeal from the intermediate order, but we affirm the order of the circuit court.

1. Recognition of tribal court divorce decree.

William claims that the tribal court divorce decree has dissolved his marriage to Dolly, and under the principle of comity South Dakota courts must recognize that action of the tribal court. As a result, he claims no case or controversy remains for the circuit court to resolve.

South Dakota courts will recognize tribal court orders under the principle of comity, State ex rel. Joseph v. Redwing, 429 N.W.2d 49 (S.D.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2071, 104 L.Ed.2d 636 (1989), but the party seeking recognition must first establish that the tribal court order complies with SDCL 1-1-25. Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985). SDCL 1-1-25(1)(d) requires a showing by clear and convincing evidence that "[t]he order or judgment complies with the laws, ordinances and regulations of the jurisdiction from which it was obtained[.]" Dolly claims the tribal court divorce decree failed to comply with tribal law because a copy of the summons and complaint was not "served personally upon [the] defendant," as required by tribal code Sec. 04-04-05.

It is undisputed that Dolly never received or saw a copy of the summons and complaint in the tribal court divorce action. William claims that service of process was achieved by means of mailing a copy of the summons and complaint to Dolly's attorney. We disagree.

William offers no authority for his claim that mailing a copy of a summons and complaint to a party's attorney satisfies tribal code requirements for service of process. William merely contends that since the tribal judge accepted this means of service of process it must be in compliance with tribal law. He further argues that such service does not violate constitutional due process requirements. However, this is not a question of constitutional due process. This is simply a question of whether the requirements of tribal law have been satisfied, and just because the tribal judge issued an order does not mean that the service of process was valid. It has long been recognized that a party has a "right collaterally to impeach a decree of divorce made in another state, by proof that the court had no jurisdiction[.]" Williams v. State of North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, 1581 (1945) (Williams II ); see also Underwriters Nat'l Assurance Co. v. North Carolina Life and Accident and Health Ins. Guar. Ass'n, 455 U.S. 691, 705, 102 S.Ct. 1357, 1366, 71 L.Ed.2d 558, 570-71 (1982) ("[B]efore a court is bound by the judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court's decree.").

Since we are aware of no tribal authority regarding the definition of "served personally," we must use the plain meaning of the words within the context of the tribal code. We first note that Black's Law Dictionary lists service by mail as a form of substituted service which is defined as "any form of service of process other than personal service." Black's Law Dictionary 1228 (5th ed. 1979). In other words, when something must be served personally, generally it is insufficient to mail it.

We next look to the surrounding provisions of the tribal code for guidance in interpretation. Section 04-04-04 provides that a summons shall be "directed to a police officer with a command that he serve it." It is unlikely that a police officer would be directed to serve a summons if service by mail was sufficient. Section 04-04-05 provides that the summons must be served personally and if the defendant cannot be conveniently found, "[s]ervice may be made by leaving a copy of the summons and complaint at the defendant's usual abode with a resident of the household above the age of 14 years." This is the only alternate form of service allowed, yet it still suggests that the summons must be personally delivered. Finally, we note that Section 04-04-06 provides that the police officer is to return the summons with a signed statement that he had either served it or was unable to serve it. If service by mail were sufficient, the police officer would be unable to state one way or another whether the copy had actually been received by the defendant. Consequently, the requirement of Sec. 04-04-06 would not make sense. Therefore, when the words "served personally" are given their plain meaning within their context, service by mail is insufficient to meet the requirements of the tribal code. The record does not reflect any other attempts to obtain personal service upon Dolly, such as through the use of the office of the Pennington County sheriff. William has failed to establish by clear and convincing evidence that the divorce decree complied with the laws of the Crow Creek tribe. As a result, we are unable to recognize the tribal court divorce decree.

2. Subject matter jurisdiction.

The South Dakota Legislature has granted circuit courts subject matter jurisdiction over actions for divorce. SDCL 16-6-9. This jurisdiction may extend to any marriage where one spouse is domiciled within the state. As explained by the United States Supreme Court in Williams II: "The domicil of one spouse within a State gives power to that State ... to dissolve a marriage wheresoever contracted." 325 U.S. at 229-30, 65 S.Ct. at 1095, 89 L.Ed. at 1581. Accord Nelson v. Nelson, 71 S.D. 342, 24 N.W.2d 327 (1946). A state where only one spouse is domiciled has this power because domicile creates a relationship with a state, and "[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders." Williams v. State of North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 213, 87 L.Ed. 279, 286 (1942) (Williams I ); see also Restatement (Second) of Conflict of Laws Sec. 71, comment a (1971) ("When the spouses have separate domicils, each state of domicil has an interest in their marriage status.").

William contends that even though Dolly is domiciled in the state of South Dakota, South Dakota's courts do not have jurisdiction over their marriage because of their status as enrolled members of the Crow Creek tribe. He argues that exercise of jurisdiction over this marriage by a South Dakota court would infringe upon the sovereignty of the Crow Creek tribe.

The test for determining whether...