Wilson v. Wilson

• Decision Date: 21 March 1980
• Docket Number: No. 14935,14935
• Citation: 607 P.2d 539,186 Mont. 290
• Parties: Loretta WILSON, Petitioner and Respondent, v. Kent Eugene WILSON, Respondent and Appellant.
• Court: Montana Supreme Court

Page 539

607 P.2d 539

186 Mont. 290

Loretta WILSON, Petitioner and Respondent, v. Kent Eugene WILSON, Respondent and Appellant.

No. 14935.

Supreme Court of Montana.

Submitted Jan. 18, 1980.

Decided Feb. 6, 1980.

Rehearing Denied March 21, 1980.

Larry W. Moran argued, Bozeman, for respondent and appellant.

Landoe, Brown, Planalp, Kommers, Lineberger & Johnstone, Bozeman, Gene I. Brown argued, Bozeman, for petitioner and respondent.

DALY, Justice.

This is an appeal by Kent Eugene Wilson from a judgment of the District Court of the Eighteenth Judicial District in and for Gallatin County, the Honorable W. W. Lessley presiding, which granted the petition of respondent Loretta Wilson for a dissolution of marriage, custody of the minor child of the parties, support of said minor child, and a division of property.

The parties met in southern California in 1962 at which time appellant was a dentist serving as a captain in the military. When respondent became pregnant, the parties decided to obtain a Mexican marriage on the advice of appellant's attorney. Arrangements were made by said attorney and on October 3, 1962, the parties participated in a marriage ceremony at an attorney's office in Tijuana, Mexico. Neither party has any documentation of this marriage, and attorneys acting on behalf of appellant were later unable to find any record of the marriage in Mexico. Respondent was also unsuccessful in a subsequent attempt to obtain documentation of the marriage in Mexico. After the Mexican ceremony, the parties returned to southern California but they never cohabited. Appellant returned to the Fort MacArthur dental base where he was stationed in San Pedro, while respondent returned to live in Long Beach. Appellant did not pay respondent's rent or food expenses or otherwise support her, nor did she ever receive a military allotment as a dependent spouse. Respondent was working at this time.

There remains a dispute as to whether the parties ever considered themselves married. Nevertheless, appellant took respondent to Fort MacArthur where he represented that she was his wife and obtained a military I.D. and medical privileges for her. In December of 1962, two months after the trip to Mexico, appellant resigned his military commission and left the State of California. He had told respondent that he was going on a hunting trip for a couple of weeks.

Subsequently, respondent located appellant in Indiana. The parties' child was born on April 15, 1963, and on July 7, 1964, respondent sought and obtained a paternity decree against appellant in the Elkhart (Indiana) Circuit Court. The decree stated that the child was born "out of wedlock" and it ordered appellant to pay $65.33 per month in child support. Appellant has made these payments since the date of the decree.

In contemplation of his marriage to his present wife and because he was unsure of his marital status, appellant initiated proceedings in 1966 for an annulment or in the alternative for a decree of divorce from respondent. This suit was filed in the Superior Court of Lincoln County in the State of Washington, where appellant resided. These proceedings were dropped when respondent filed a cross complaint. Appellant testified in the District Court that he dropped the suit because he had been advised by his attorney that there was no marriage and therefore no need to obtain an annulment or divorce.

Nothing further was done by either party until the present suit was filed by respondent in the Gallatin County District Court on November 30, 1978. Appellant has been a resident of the State of Montana since 1971. He is an orthodontist and his annual income for 1978 was approximately $60,000. In addition he is purchasing a residence and an office building and has other assets. He testified that he is capable of paying the support payments ordered by the District Court.

Respondent is employed in Long Beach, California as a darkroom technician with a take-home pay of $238 every two weeks. She is a domiciliary and a resident of California. Other than her court appearance in the present case, she has never been in the State of Montana. The same is true of the minor child, Kentanne Mary Wilson, who is now sixteen years old. Prior to the trial of this case she had never seen her natural father. The minor child was born with a congenital hip problem and has numerous other medical problems. Her medical expenses have been considerable.

Appellant, Kent Eugene Wilson, specially appeared challenging the District Court's jurisdiction. The challenge was overruled, and the case was heard on its merits by the District Judge on May 21, 1979. On June 18, 1979 findings of fact were entered by the court determining (1) that the parties were married in Tijuana, Mexico on October 3, 1962; (2) that appellant deserted respondent in December 1962; (3) that the marriage is irretrievably broken; (4) that respondent is a fit and proper person to have custody of the minor child; (5) that appellant has refused to support the minor child except for the payment of the sum of $65.33 per month as ordered by the Elkhart (Indiana) Circuit Court order dated July 7, 1964; (6) that appellant has accumulated property and is capable of paying the sum of $200 per month for the support of the minor child until she reaches the age of majority; and (7) that respondent is entitled to an award of a part of the property accumulated by appellant despite the fact that she did not assist in the accumulation of property. On the basis of these findings, the court entered the following conclusions of law and entered judgment (a) that the marriage of the parties is dissolved; (b) that respondent be granted custody of the minor child and that appellant pay $200 per month child support together with present and future medical and dental expenses; (c) that respondent be awarded the sum of $15,000, plus reasonable attorneys fees. It is from this judgment that the appeal is taken.

Two issues are presented for review by this Court:

1. Did the District Court have jurisdiction to consider Loretta Wilson's petition and enter judgment (a) granting a dissolution of marriage and (b) modifying the Indiana support decree?

2. Does the evidence support the findings of a valid marriage between the parties and the property award to respondent?

The first issue to be considered is whether or not the District Court had jurisdiction to consider Loretta Wilson's petition and enter judgment granting a dissolution of marriage.

The Indiana paternity suit established appellant as the natural father of respondent's child and it decreed support. Although the decree states that the child was born "out of wedlock", the validity of the Mexican marriage was not litigated in the Indiana paternity suit, and it is not res judicata on the question of the marital status of the parties. It is not a question of collateral estoppel, since the marital relationship of the parties was not an essential or material fact in the paternity suit, nor was the marital status of the parties determined in that action. Western Mont. Prod. Assn. v. Hydroponics, Inc. (1966), 147 Mont. 157, 410 P.2d 937. The marital status of the parties was immaterial to the paternity suit, because the same relief, i. e., child support, would have been decreed regardless of their marital status. Appellant's duty to support existed...