314 N.W.2d 276 | Neb. | 1982
A decree of divorce between the parties to this suit was entered on the 31st of December 1980. On May 4, 1981, after the term of court had expired, appellant filed a motion to set aside the decree, alleging that the judgment was irregularly obtained by reason of the fact “[t]hat the petitioner was not a resident of the State of Nebraska for one (1) year next to the filing of this petition the 9th day of June, 1980; rather abandoned her residence in Nebraska on the 16th day of January, 1980
In her petition the appellee alleged that she was a resident of the State of Nebraska and that the court had jurisdiction of the parties. The appellant, contrary to the position addressed to the court in his motion, alleged in his answer: “Admits that petitioner has been a resident of Nebraska for more than one year and that petitioner’s present address is Auburn Trailer Court, Lot 10, Auburn, Nebraska.” In his cross-petition appellant alleged “[t]hat he resides at Auburn, Nemaha County, Nebraska, and he has been a resident of the State of Nebraska for more than one year.”
The residence of the parties was not an issue before the trial court. On the presentation of the motion to the trial judge, the trial court found that the judgment was not irregularly obtained but, rather, the motion raised issues of fraud in the obtaining of the judgment by the appellant and appellee, either severally or jointly. The trial judge also noted that Neb. Rev. Stat. § 25-2002 (Reissue 1979) provides in part: “The proceedings to vacate or modify the judgment or order on the grounds mentioned in section 25-2001, subdivisions (4), . . . shall be by petition verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant....” The trial judge, in finding fraud, held that the court was without jurisdiction to entertain the motion to set aside the decree since a separate petition had not been filed. We affirm.
There is only one issue in this case and that is whether or not a judgment in a divorce case, in which the parties do not contest the fact of residency, is obtained irregularly when the fact of residency for the statutory period necessary to obtain a decree of divorce is alleged to be otherwise than that maintained by the parties in their pleadings. Black’s Law Dictionary 744 (5th ed. 1979) defines irregular judgment as one rendered contrary to the course of law and practice of the court. Estate of
Affirmed.
