*1 even not been cleared record had ly, his permit To 39-17-113.
under SDCL “play games” with statute young rehabilitate offenders
devised justice and should my sense of
distasteful I would affirm. permitted. ADAM,
Sandra Riddle Plaintiff Appellant,
v. ADAM, H.
William Defendant Respondent. 11823.
No.
Supreme Court of South Dakota.
Argued Feb. May
Decided 6,1977.
Rehearing Denied July *2 divorce,
cree of custody of the child and an equitable division of the property. To this counterclaim the plaintiff’s reply was a denial general specific denial of any cruelty. acts of From the outset each of *3 sought the temporary custody and control the minor child and at the behest of the the court defendant on 9, 1973, entered an order directing the plaintiff to cause, show after the receipt of an investi- gative report from the Division of Child Welfare, (sic) why the defendant should not granted the custody and control of the The order child. directed that in the mean- plaintiff time both and defendant were re- from removing strained the child from the jurisdiction of the court. This order was never served on plaintiff although her advised counsel her not to remove the child from the of the court. On Oc- 10, 1973, tober the court entered an order directing (sic) the Division of Social Wel- investigative fare to make an report bear- ing on the relative merits parties’ custody. for Subsequent claims to this or- Richards, Deadwood, Richards & and approximately der two months after appellant. plaintiff commencement of the plaintiff action the Hood, Spearfish, Richards & for defend- application to the court for an order respondent. ant and why to show cause the defendant shouldn’t
pay reasonable support for the plaintiff and MORGAN, Justice. the minor child of parties. The show hearing set determining cause This divorce action was commenced in support was apparently never held. At 1973, by service September, of a summons December, 1973, point, counsel for an unverified on the defend- plaintiff filed a notice of withdrawal complaint alleged which ant and generally due to failure cooperate. A marriage parties, birth of a copy of the notice of withdrawal was served marriage, acts of extreme on the court and on counsel for the defend- cruelty committed the defendant. appear but it does not ant that it was ever prayed for relief in the usual form Plaintiff plaintiff. served on divorce, custody, care and for a decree subject rights of the minor child control January, In late the defendant visitation, equitable prop- division of the application made a further to the court for erty attorney’s fees. Defendant’s an- temporary custody alleging plain- that the the marriage swer admitted and the tiff had removed the minor child from the birth the child as issue of marriage jurisdiction of the court cooper- and had not allegations regarding cruelty. denied granting rights, ated in visitation all in The defendant counterclaimed alleging the violation October 9 order of the marriage, the birth of the child to the mar- requested court. He further that the court cruelty part plaintiff the extreme riage contempt declare and the plaintiff and likewise prayed for a de- January court on entered an ex plaintiff in con- made parte up point to that was that the violation court’s tempt court for had taken one of two vehicles with her order, although findings no “meantime” when she left. law conclusions of were made and fact or The court entered of fact and evidence whatever in the record there is no law granted conclusions the defend- had ever been the October ant decree of divorce. The issues decided contempt her. The order went on served findings, the court in these conclusions temporary custody to the defend- grant were that there had been a valid final determination of the mat- pending ant marriage and that one child had been born January 28 order was served on ter. The (both an issue thereof which issues later, some month and a half virtually undisputed were in the pleadings); apparently but she refused to deliver the court further decided the issue the child to or to custody of for divorce in grounds favor of the defend- deputy tell the defendant or sheriff’s However, with respect *4 ant. to custody the the whereabouts and the defendant child’s child, the of minor while the court found declaring a order applied for further the the defendant was a fit proper and contempt and the of plaintiff in issuance a care, to have the person custody and control The record not bench warrant. does in- child, the of minor Conclusion of Law No. declaring plain- the order the clude either custody Ill awarded the to the defendant warrant, contempt tiff in nor a bench nor pending further order of this court and of fact conclu- findings does it contain appearance proper by the plaintiff together support contempt sions law to order. of the with minor child before this court. anything further could the Before be done (Emphasis supplied.) The decree contained again plaintiff taking fled the language. identical likewise, The court nothing child with her and fur- the minor finding that during while the of course from for ther was heard her some consider- marriage parties the their had acquired cer- of period able time. items real personal tain of property, August, applied In the defendant entered Conclusion of Law No. IV award- from the for and received court an order for ing property the to the pending defendant although the order is not a matter of proper appearance and application before attempt record. An was made to serve this by plaintiff. court (Emphasis this sup- plaintiff South Carolina. Two plied.) Property division specifical- was not subsequent by trial dates were set mentioned in the ly decree the
court, being the final date set 28th for the fact and of conclusionsof law were incorpo- February, 1975, order, day of and as to that in the decree by rated reference. mistakenly notice, which is denominated a application granted proper the court plaintiff The and the minor child were by publica- further leave serve same ultimately residing found in the of State mailing. tion and Wyoming, cohabiting with a man who also had a son. As a result of a habeas corpus trial, set place At time and for the proceedings Wyoming, the Wyoming counsel for defendant filed an affidavit Department Welfare took judgment. for The defendant was default pursuant to application child by the briefly sworn and testified as to the mar- court defendant order turned the cus- riage, the birth of the minor child tody over to the South Dakota authorities. marriage, plaintiff misconduct of the court order entered by a second circuit cruelty, that constituted extreme and his judge, judge the first having retired, grant- care and maintenance of the child minor temporary plaintiff ed Department before the had removed him from jurisdiction. “pending Services accumulated Social further hearing was mentioned in matter to passing. permanent determine custo- Apparently, only division that had been dy.” parties, by affida- each defendant. The
Thereafter order entered by the to the for tem- vit, application however, court court on the same date stated: defendant for a applied “Custody of William Lee porary Adam is hereby “why prior order of defendant, cause order awarded to the show William H. decree entered Febru- court in divorce this Adam.” The decision and the order further granting custody par- ary plaintiff found that the tion, should have visita- defendant, rights during minor child should ties’ school periods vacation plaintiff permanent.” be made detailed these. The order further de- purge for an attorney’s fees applied nied and found that the court, contempt purge amend could herself herself the previ- from allege contempt three of her order of paragraph compliance ous full nonpaternity provisions the terms with parties, require group cooperation child of the the full minor the decisionof tests, temporary custody of the court. blood attorney’s Coun- and for fees.
minor Apparently at prehearing conference also filed affidavit sel it was noted divorce order finding change for an applying been served on the plaintiff never and she applications All these circumstances. her counsel record admitted service made to orders to show cause were the same as of thus were entered a third circuit thereon making appeal her at this time from a hearing who set a combined date on judge 1974 decree timely. *5 9, 1975. October Almost before ink dry was with counsel for both At conference 24 order the October was back in prior hearings to the combined asking a change court in the visitation motion of counsel for the defendant the rights and the defendant contesting was it. judge elected treat the trial determina- Early in December defendant applied to the custody question of the set tion out in for termination of court the plaintiff’s visi- and conclusions of law and the rights alleging that tation some two weeks 28, February of aas final she had entered earlier his home dead order October disposition dated night and removed of the child and his testimony limited the plaintiff’s clothing. apparently She had second of change of circumstances subse- issue thoughts and her husband, contacted then February quent pro- She was persuaded her to who return child. inquiry from into prior hibited facts responsive alleged Plaintiff’s affidavit prohibited from inquiry date into the went home she to the of the defendant to of paternity the minor child. A further welfare, discuss the child’s argument 8,1975 prehearing order dated October aris- arose in which some physical abuse was out of the ing plain- conference denied the alleged to have been inflicted her. permission to amend paragraph tiff three of room, then She fled from the her- secreted complaint, request her denied her for blood in a hiding place, self after defend- tests, found the grouping division son, asleep ant had fallen her awakened of the decree of portion divorce final packed slipped his clothes and from the and took under advisement the her were wrong house. She admitted acts allowing attorney’s fees. question pleaded anguish, concern and gnawing a protracted hearing begun After on Oc- plain- emotions. The defendant denied 9 and continued October 15 the allegations tober tiff’s or that conversation judge in his memorandum decision of The dispo- he had struck or scratched her. 24, 1975, change found application that no of this was October sition until 6, 1976, had occurred and went on to January circumstances when the court restored it therefore be decision that will visitation privileges state re- calls, the custody this court that remain with on telephone strictions removal of the 128 jurisdiction from the of the court and improper. The default contemplated by our than 100 miles from Lead. statutes,
more 15-6-55, SDCL relates to failure plead or otherwise defend. The question application merely goes of default to the right of the which, for a new trial court addition to moving party proceed to trial without claiming insufficiency of the evidence to notice. In the giving instant case the mat- support original findings and conclu- at issue and ter was due and legal notice and decree of sions given, arising so error from the question of the of the raised error court filing of the affidavit and the references to hearing prehearing in the October in the findings, default conclusions or de- concluding the conclusions orders would be harmless cree error. original pro- law and the decree in the ceeding granted permanent custody of the being The matter properly before child to the defendant and awarded minor court, the trial whether upon affidavit or property.' the defendant all notice, duty it is first of the court to again question raised the application that the statutory determine residence re complaint relative to the amendment are satisfied. quirements The second con of the child and the order to take is whether the sideration statutory waiting group Finally, applica- tests. the blood expired. period has may then challenged sufficiency of the evi- tion into the inquire existence grounds to sustain October order that dence divorce. evidence circumstances 25-4-1 provides: SDCL hearing After was insufficient. on the mo- “Marriage is dissolved only: an order on the court entered Decem- tion ber denying the motions. From [*] [*] [*] [*] [*] [*] erly the legal notice of trial law issue on the tiff, custody of the minor child and division of effect so discloses that a child is the case dy ary the this order denying blood involving as it the minor 28,1975, and decree of divorce place before the trial court. In our property, plaintiff, the involving dispute albeit group of the The first issue that we turn to is the proliferation of the court amendment of difficult, of. denying a new by publication, tests, with the trial the findings pleadings the 28 divorce decree the matter the child, division issues. The record respect and from that portion obfuscations of counsel does the aberrations of plaintiff but this was served on the the October 8 of trial judges. over fact, and that due entered on Febru to the child custo matter was trial, was and at the time one is appeals. Any the conclusions of properly custody view, uniquely plain prop the at divorce. corporated fense of either the name of the husband or the wife. tion of rection for the property belonging to courts whether the title to such property is in Normally, of “Where a may at er to make an before or after SDCL (2) By the judgment of a court of compe- “In an action for divorce the SDCL 25-4^44 [*] any time [*] tent first seem [*] shall in such action 25-4-45 the It query in divorce is granted necessary parties. children of vacate or one course, then in the instant case is custody, provides provides equitable judgment, judgment husband or * * * or decreeing a divorce all of these are in- modify proper, the marriage as care, either or that: that: division of the have give such di- or decree of ” and educa- court the same.” for an of- wife, full and may both, pow- *6 may, the filing purported of the affidavit of default whether or not the provision in the divorce and the references in the the supported by decree the wording in the plaintiff being decree to the in default were findings of fact and conclusions of law con- or order as or such a decree decree there that stitute indication the temporary in so, be intended be na- nor would court did did counsel amake record evidence, further or pending ture that proposing the court do so. spite In judgment a final or decree it is whether in allegations the defendant’s affidavits subject only showing to amendment no there is that was of circumstance under the Masek1 and proper person care, not a fit have “gone to be in only of cases or behind” line control of the minor child. special event of circumstances as in the application, Both filed pre- affidavits cases, by line of the view taken Anderson2 at pared orders various times after 28th judge. third trial February, 1974, referring “temporary” custody. These plus as considerations the con- judgment A defined in SDCL 15-6- that 54(a) sideration the phrase proper ap- includes a decree and means the “and final by rights pearance of the parties together in with determination added). proceeding (emphasis action or minor child before logi- this court” cannot any provision statute does make cally explained be other manner opposed temporary permanent as de- us to hold that judge, leads provides While 25-4-34 that: SDCL crees. entering findings, conclusions and the “ * * * waiting During period the decree, [the] had reserved the final determina- required all may issue orders to effec- court tion until such as he time * ** expressed in purposes tuate hearing could conduct full-blown protect any parties or to 25-4—45 § issue. thereof, during pendency action ” reasoning regard Our is forti * * * orders, by very their such are fied, believe, by we language the similar “meantime” and nature orders terms the conclusions of law regarding proper clearly lite and discernable from pendente ty division which incorporated custody. usual decree or reference. While it can be ar paragraph We concede that the be gued custody provisions with the familiar “It Is Further gins Or always decree are open amendment dered, Adjudged and Decreed” while a proper showing, argument is not true normally agree would be inclined to we respect with to property divisions and the interpretation trial court’s phrase “pending appearance and proper ap decree, it custody provision of the was en plication before this court the plaintiff” under rather abnormal tered circumstances. only interpreted can be mean custody child was at issue under obviously intended that also there each pleadings and proceeding further to determine that issue. strenuously seeking tempo affidavits filed This court previously has held that rary custody respec in himself and herself *7 a final on the a merits is bar to violently tively opposing temporary any parties future action between the other. same custody in the At the time of the privies upon or their the the same cause of plaintiff and child both the were trial settling only every action not transcript actually of divorce issue the hear absent. presented to or right in shows a of sustain defeat ing the record dearth infor the asserted, usually but every might that the court considers in issue that have mation custody in awarding establishing visita been raised the first action.3 A judg are a rights. We aware that court can ment which bars a tion second action the judicial of own notice files and same claim only every take extends not mat records; however, the findings nowhere in ter offered and received so or defeat sustain 3. Chicago Railway Compa (1976) S.D., Masek v. Masek 237 North Western N.W.2d 1. 432. ny, Corporation of a v. Bruce Gillis as Director (1964) of South et al. 80 Taxation Dakota (1970) S.D. Anderson v. Anderson 85 S.D. 1; (1972) 86 S.D. 129 N.W.2d N.W.2d 394. N.W.2d demand, question also to all other grounds the for divorce claim or nor for
the
might have been
which
matters
property,
division of the
but the
equitable
admissible
If however
purpose.
to the same
offered
has to be a vital issue to the
paternity
upon a different
action is based
second
the
custody question. What then of the Febru-
demand,
prior judgment pre-
claim
Finding of Fact II:
one
ary 28
“That
only of those
consideration
further
cludes
marriage, namely,
born as issue
this
was
actually litigated
were
which
issues
Adam,
Lee
born November
William
Law ad-
Under South Dakota
determined.4
is noteworthy
1967.” It
that
divorce,
grounds for
judication
incorporated
part
in the decree as a
custody of
rights
determination
regarding custody. As to
paragraph
equitable
division of
children
we
point,
by
are
now bound
rule of
separate and distinct is-
are
property
judicata?
res
sues,
dependent on the
none of which is
judicata is
The doctrine of res
a
necessity
grant-
for the
except
other
which
be
may
25-4-45.1
created doctrine
judicially
of divorce. SDCL
ing of a decree
awarding
reason,
rule of
for consideration in
as an obvious
fault
to exist
removes
said
fairness,
with certain
expediency, practical
or child
ne
property
justice,
pertinent
which are not
here.
public
Public
exceptions
cessity,
tranquility.
poli
orderliness, economy
judicial
judicial
cy,
third
Accordingly, we hold that the
time,
litigants,
the interest of
as well
as
entering
in
order of
judge erred
his
society,
require
and order of
all
peace
restricting
October
stability
judgments,
should be accorded
cir
of evidence of
introduction
once decided on their
that controversies
only
prohibiting inquiry
cumstances
repose,
in
remain
incon
merits shall
to the issue of
facts relevant
into
judicial decisions shall not be made
sistent
further hold that
to that date. We
prior
facts,
the same set
and that there be
judge
ruling
erred in his
the trial
which,
litigation
an end to
without the doc
equitable division
issue of
judicata,
res
would be endless.5
trine of
reasons.
the same
repeatedly
“first,
This court has
said
a
Having
provision
determined that the
judgment or decree of a court of com-
final
divorce decree
bar
jurisdiction upon the merits is a
petent
by
intended
the court as
was not
the child
issue,
par-
the same
we next
future action between
of that
determination
final
privies upon
amend
the same cause of
ties or their
examine
unreversed;
it
put
long
in issue
so
remains
pleadings
action
sup-
second,
garner
and,
evidence
a point
actually
child and
which was
assertion that the defendant
(emphasis supplied)
of her
in issue
in a
port
directly
father.
the child’s
and was
judicially
action
there
former
by
and determined
domestic
passed
Having determined
competent
cannot be
court of
was not a final determination
28th
question
future action be-
drawn
custody,
of child
our decision
the issue
the same
or their privies
tween
ruling on
7 on
trial court’s
the cause of action in the two
whether
for leave to amend is
motion
identical or
different.”6
actions
simple logic.
dictated
consideration is the one most
plead-
second
issues raised
the three
Of
point
this case and refers to a
*8
paternity
apropo
which the
only
one to
ings
actually
directly
and
in issue
The birth of a which was
issue.
is
alludes
* *
*
judicially passed
was there
marriage
germane
was not
and
child
Service,
S.D.,
274,
(1976)
Enterprises,
6. Keith
v. Willers Truck
64 S.D.
Inc.
v. Oahe
4. Golden
257,
256,
1471;
102,
104
N.W.
A.L.R.
Carr v.
109.
266
240 N.W.2d
(1951)
47
73 S.D.
N.W.2d
500.
Preslar
395, p.
Judgments,
559.
section
Am.Jur.2d
5. 46
question the
being
the child
a
question
motives of
upon.
defendant
in
fighting so
issue,
not in
both
marriage
strenuously
child of
custody of
if in
the child
fact
it to
he is not
having alleged
be a fact
his. A foster
parent
adoptive
or
parent
grow
can
clearly distinguish
We can
pleadings.
their
love a child as much if not more than the
the case
the trial
where
this from
parents, but
natural
we are faced by the
issue of
paterni-
with an
presented
been
law of nature
the blood ties between
child,
evidence and
its
of a
received
ty
parent
natural
and child are the stronger
adjudication
and
on
final determination
protected
and this has been
both under the
custody issue.
latter
doc-
In the
case the
common law
our modern statutory pro-
judicata
clearly
appli-
of res
would
be
trine
procedure
visions.
for severing these
not
former
so in the
case.
cable
specific
ties is
Only
exact.
under ex-
distinguish
Even were we unable
thus
they
treme circumstances are
severed when
case, we would
faced with
this
be
a formid-
parents
the natural
are not found to be fit.7
argument why the doctrine
would
able
No such
has
in this case.
inapplicable
been made
this case.
has made certain rules
It is
Nature
also.
The logical conclusion then is
so well
that we
take
fact
known
can
a
judge-made
that the
rule must bow to the
notice
that the
term
judicial
thereof
normal
rule;
and statutory
natural
that plaintiff
nine
approximately
months.
pregnancy
allowed to
must be
amend her complaint
is no evidence in
record that
There
put
into issue
in order to
than
was born earlier
the normal
complete adjudication
have a full
marriage
The date of the
and the
term.
of custody.
right
the issue
to amend
matter of
the birth are a
record
date
other
pleadings
than the absolute right
six months intervened. This
just over
by statute8
granted
before responsive
against
itself is not
pater-
conclusive
are
pleadings
served is addressed to the
uncommon
it is not
nity because
sound discretion
the trial court and we
marry
conception;
after
some
parents
repeatedly
have
held that the court should
shotgun
marriages are referred to as
these
exercising
be liberal
discretion in
weddings.
But the
has filed here-
right
granting
amend even after judg
that she
even
stating
affidavit
didn’t
in an
ment where
demurrers
have
been
at
know
time of
sustained,9
or the
reversed
ap
conception, that she met
child’s
him some
back for
peal and sent
a new trial.10 Unless
she
trip
months later when
was on a
two
been a
there has
manifest abuse of such
Laurens,
Carolina,
home in
South
discretion,
from her
this court will not interfere with
allegations
Black Hills. These
stand
the exercise of that
discretion
the trial
except
in the record
undisputed
The third
court.11
judge obviously
prior finding
that the
in the Feb-
ruling
assertion
his
based
motion for leave to
judicata.
ruary 28 decree is res
We do
the misapprehension
amend on
affecting
7.“By
nature and
welfare of the child’.”
under
common law
Blow v.
provisions,
(1953)
statutory
25-
Lottman
825,
S.D.
[SDCL
virtue
N.W.2d
preferred
parent
826.
has a
5-7
30-27-23]
right
his
legal
or her
chil-
own
15-6-15(a).
But
law and
8. SDCL
dren.
under the common
modern
well,
25-5-16 and
[SDCL
26-8]
statutes
right
through
Greely McCoy (1893)
has a
the courts
under
9.
v.
3 S.D.
state
proper
54 N.W.
parental
terminate the
circumstances to
659.
* *
deprive
custody.
right
parent
helpful guide
opinion
Development
is in our
well
There
10. Hemmer-Miller
Co. v. Hudson
law;
body
(1934)
recognized
parents’
Co. of N. Y.
63 S.D.
Insurance
N.W.
798;
Raney
(1946)
Riedy
own
v.
over their
children should
71 S.D.
except upon
showing
be disturbed
a clear
23 N.W.2d
never
parent
‘gross
against the
misconduct
un-
fitness,
extraordinary
Riedy,
Raney
supra.
or of other
circumstances
v.
*9
February
dispositive
decree was
Plaintiff does not contend that she was
custody question. Since we have held that
unaware
child’spaternity at the time
regard,
in error in that
we hold
he was
that
the divorce action was commenced. Thus
respect
likewise in error with
he was
situation
existed
Anderson v.
for leave to amend.
motion
Anderson,
152,
1;
85 S.D.
179 N.W.2d
remand,
757,
86 S.D.
201 N.W.2d
is not
motion for an order
here.
present
group testings under
to have blood
SDCL
Plaintiff
testified that she learned in
15-6-35(a)
likewise
is
addressed to the dis
March of 1975 that a decree of divorce had
Again
cretion of the
court.
we feel
If
granted.
been
ever there was a time
the court’s decision in its
that she should have taken steps to have
denying the motion was based on
modified,
set aside
that decree
it was
misapprehension
portion
as the
same
of taking
then.
Instead
action,
such
denying
amend. While
however, plaintiff
relied
group
blood
tests can never
such
establish
August
marrying,
the man with
nevertheless, according to the
paternity,
whom she had been living for a number of
heredity, nonpaternity
rule of
can be estab
This action
months.
on her part obviates
group
whenever the blood
of a
lished
necessity of
princi-
discussion of the
incompatible with that
alleged
judicata on
ples
part,
of res
our
having
the purpose
Since
father.12
tests
benefits,
accepted
plaintiff will not be
this case is to determine nonpaternity as
nullity
to assert the
invalidity
heard
it
opposed
appear
would
that in
judgment.
Brockel,
Brockel v.
80 S.D.
helpful
all likelihood
results could
547,
entry of the
1975 decree of
divorce was such that the trial court was
DUNN,
J.,
ZASTROW,J.,
C.
concur.
holding
not in error in
that the award of
WOLLMAN, J.,
HERTZ,
Circuit
should not be modified. Masek v.
Masek, S.D.,
Judge, dissent.
TER, disqualified. Judge joins HERTZ in this dissent.
WOLLMAN, Justice (dissenting).
I would affirm. divorce, complaint
In her
alleged that one child had been born to her
marriage with defendant. Defendant made allegation
the same in his counterclaim for
divorce. Nowhere in the several affidavits by plaintiff
filed is there contention she was not aware of the allegation
that she had made in her or that made in his counterclaim respect to the birth of the child. Paternity: “Blood-grouping 12. From Here to (1936) 13. State v. Damm 64 S.D. 266 N.W. Bastardy Proceedings, Tests” in and Divorce (Spring-1958); SD L.Rev. 125 State exrel Wol (1948) Brigham 72 S.D. lock v. 33 N.W.2d