Weston v. Jones, 20958.

CourtSupreme Court of South Dakota
Writing for the CourtKONENKAMP, Justice.
Citation1999 SD 160,603 N.W.2d 706
PartiesCynthia R. WESTON, f/k/a Cynthia R. Jones, Plaintiff and Appellee, v. Gordon E. JONES, Jr., Defendant and Appellant.
Docket NumberNo. 20958.,20958.
Decision Date22 December 1999

603 N.W.2d 706
1999 SD 160

Cynthia R. WESTON, f/k/a Cynthia R. Jones, Plaintiff and Appellee,
Gordon E. JONES, Jr., Defendant and Appellant

No. 20958.

Supreme Court of South Dakota.

Considered on Briefs September 13, 1999.

Decided December 22, 1999.

John A. Shaeffer, Flandreau, South Dakota, Attorney for plaintiff and appellee.

Gordon E. Jones, Jr., Pro se defendant and appellant.


[¶ 1.] Gordon Jones appeals from an order denying his motion to vacate the court's judgment and decree of divorce for lack of subject matter jurisdiction. For the reasons set forth below, we affirm.

Facts and Procedure

[¶ 2.] Cynthia Weston1 and Gordon Jones were married August 31, 1991 in Flandreau, South Dakota. Two children were born of this marriage. In 1995, the parties separated. On February 26, 1996, by service of a summons and complaint, Weston commenced a divorce action against Jones in circuit court in Moody County, seeking division of property, child custody, and child support. Jones answered, stating, inter alia, that the parties and their two minor children were enrolled tribal members residing on Flandreau Santee Indian trust land and that all of their property was located within these boundaries. He did not pursue this jurisdictional issue further in the divorce action.

[¶ 3.] In May 1996, the parties entered into a settlement agreement that addressed their property, custody and support issues. The circuit court entered a judgment and decree of divorce on June 10, 1996, incorporating the parties' agreement. Neither party appealed from this judgment. In 1998, Jones twice sought modification of his child support obligation in circuit court. Following hearings on these separate motions, orders were entered modifying child support.

603 N.W.2d 707
[¶ 4.] On January 5, 1999, two and one-half years after the divorce was final, Jones filed a motion in circuit court to dismiss the judgment and decree of divorce for lack of subject matter jurisdiction or, in the alternative, transfer the matter to tribal court. Following a hearing, the circuit court denied the motion. Jones appeals

Analysis and Decision

[¶ 5.] Both Jones and Weston are enrolled members of the Flandreau Santee Sioux Tribe as are their two minor children. They reside on Indian trust lands and did so prior to their divorce. All of their property, including their marital home, was located on tribal trust land. All four family members receive a monthly allotment from the tribe, the children's monies being placed in trust for their benefit. The tribe employed both parties at the time of their divorce. Jones was secretary of the tribe's executive council, an elected position. Weston does not dispute these facts but argues that Jones is estopped from attacking the parties' divorce decree on jurisdictional grounds because he submitted himself to state court jurisdiction at the time of the parties' divorce and at two subsequent hearings regarding child support modification.

[¶ 6.] It is recognized that "domestic relations among its members is an important area of `traditional tribal control.'" Byzewski v. Byzewski, 429 N.W.2d 394, 399 (N.D.1988) (citing Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877, 889, 106 S.Ct. 2305, 2313, 90 L.Ed.2d 881 (1986); Fisher v. District Court, 424 U.S. 382, 388-89, 96 S.Ct. 943, 947-48, 47 L.Ed.2d 106 (1976); United States v. Quiver, 241 U.S. 602, 603-04, 36 S.Ct. 699, 700, 60 L.Ed. 1196 (1916); F. Cohen, Handbook of Federal Indian Law at 249 (1982)). See also Conroy v. Conroy, 575 F.2d 175, 182 (8th Cir.1978) ("[T]he power of a tribe to regulate the domestic relations of its members, historically well established, remains undisturbed."). It is further recognized that a judgment of a court without subject matter jurisdiction is void. State ex rel. Freeman v. Sadlier, 1998 SD 114, ¶ 10, 586 N.W.2d 171, 174 (citing In re M.A.C., 512 N.W.2d 152, 154 (S.D.1994)).

[¶ 7.] There is another principle, however, based on estoppel, that has been long applied in divorce actions. It holds that one who obtains a judgment cannot later collaterally attack it on jurisdictional grounds. 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 13.3 (2d ed. 1987) (collecting cases at n. 13).

To put the principle in concise form, if the person attacking the divorce is, in doing so, taking a position inconsistent with his past conduct, or if the parties to the action have relied upon the divorce, and if, in addition, holding the divorce invalid will upset relationships or expectations formed in reliance upon the divorce, then estoppel will preclude calling the divorce in question.

Id. at 744. The Restatement (Second) of Conflict of Laws § 74 (1971) provides an even broader extension of this rule: "A person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him to do so." This principle is founded in the spirit of equity and common sense. It puts "finality" for the sake of the persons involved above the right to broach legal obstacles that could have been raised earlier but were not. Finality in divorce cases is particularly imperative. Imagine the upheaval in familial relationships should one be able to disrupt a long-rested decree with new questions about its validity. The narrow issue in this appeal, therefore, is not whether the state court had subject matter jurisdiction over the Jones-Weston divorce. The question is can Jones, an active participant in the state divorce action and the proponent of two later motions based on the decree, be estopped from attacking it now on jurisdictional grounds.

[¶ 8.] This same equitable principle was applied in Scherer v. Scherer, 405 N.E.2d

603 N.W.2d 708
40 (Ind.Ct.App.1980). In Scherer, a husband and his wife had been divorced in a court in the Dominican Republic. The wife appeared personally in that action while the husband voluntarily appeared by special power of attorney executed for the express purpose of obtaining a divorce. Id. at 43. Before the divorce, the parties had executed an agreement, drafted by the husband's attorney, dividing their property and settling their child custody, visitation and support issues. This agreement was incorporated into the decree of divorce. Seven months later, the husband filed for a divorce and dissolution of property in the state of Indiana claiming the earlier divorce was invalid.2 The Indiana court affirmed summary judgment for the wife, holding "if both parties to a marriage submit to the jurisdiction of another state for the purpose of obtaining a divorce they are estopped from attacking the decree by virtue of their participation." Id. The court found the husband's position was inconsistent with his conduct both before and after the divorce. Id. at 46. See Restatement § 74, supra, cmt b ("Such inequity [precluding a jurisdictional challenge] may exist when action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is inconsistent with the earlier conduct of the attacking party."). The Scherer court noted that in affirming the summary judgment, it did not address the validity of the Dominican Republic decree but merely held that the husband was estopped from challenging its validity. Id. at 48

[¶ 9.] In Webb v. Webb, 461 S.W.2d 204 (Tex.Civ.App.1970), a husband and wife obtained a divorce in Mexico. After the husband remarried, his ex-wife complained to the Texas court that Mexico did not have jurisdiction of the parties at the time of the divorce and therefore the divorce decree was void. The district court judge agreed and, by instructed verdict, decreed both the Mexican divorce and the husband's subsequent marriage invalid and that the husband was still married to his first wife. The Texas Court of Civil Appeals reversed and remanded the action for a new trial, noting that both parties had participated in and consented to the divorce and had invoked the Mexican court's jurisdiction by their participation. The divorce decree made express findings that the court had jurisdiction of the case. The court stated:

By jointly petitioning the Mexican court for a divorce, the parties thereto necessarily represented to the court that all conditions precedent to the exercise of the court's jurisdiction, including residential requirements, were satisfied. If such jurisdictional facts did not exist, a fraud was perpetrated upon the Mexican court.

Id. at 205-06.

[¶ 10.] The case before this Court shows some factual similarities to the findings in Scherer and Webb, above. Although Jones' answer to his wife's complaint raised the issue of jurisdiction, he did not pursue it further. The parties together resolved their property, child support and custody issues and their agreement was incorporated into the judgment and decree. Prior to entry of the decree of divorce on June 10, 1996, both parties signed and filed with the state circuit court a joint affidavit "for the express purpose of establishing jurisdiction and grounds for divorce." The record contains no evidence and Jones makes no claim that Weston lured him into state court. The court expressly stated in the judgment and decree of divorce that it had both personal and subject matter jurisdiction in this action. As the Texas court noted in Webb, if the court did not have jurisdiction, then the

603 N.W.2d 709
parties, by their active participation in seeking a divorce from this court perpetrated a fraud upon the court

[¶ 11.] Here, too, the conduct of the parties after the divorce supports affirmance of the circuit court's order refusing to vacate the judgment and decree of divorce. Weston requested and obtained the return of her maiden name in the decree. Although the record does not indicate that either party has remarried, it must be assumed that they have relied upon the decree, formed expectations based upon it,...

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3 cases
  • Pennington v. STATE EX REL. JUD. SYSTEM, 21910.
    • United States
    • Supreme Court of South Dakota
    • February 27, 2002
    ...The trial court lacked subject matter jurisdiction. Jurisdiction cannot be conferred by consent, agreement, stipulation or waiver. Weston v. Jones, 1999 SD 160, ¶ 33, 603 N.W.2d 706, 713 (Sabers, J., dissenting). A judgment without jurisdiction is void. State v. Neitge, 2000 SD 37, ¶ 13, 60......
  • Wells v. Wells, 23336.
    • United States
    • Supreme Court of South Dakota
    • June 1, 2005
    ...State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) (citations omitted)). But, not anymore, because now we have jurisdiction by estoppel. 1999 SD 160, ¶¶ 32-35, 603 N.W.2d 706, [¶ 30.] AND NOW, we have jurisdiction by res judicata. 698 N.W.2d 512 [¶ 31.] Contrary to the majority opinion at ¶ 20......
  • In re Murphy
    • United States
    • Supreme Court of South Dakota
    • February 6, 2013
    ...127, 133 (“Jurisdiction cannot be conferred by consent, agreement, stipulation or waiver.” (citing Weston v. Jones, 1999 S.D. 160, ¶ 33, 603 N.W.2d 706, 713 (Sabers, J., dissenting))). [¶ 10.] Finally, Shirley argues that because Claudia received timely service of the notice of appeal, she ......

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