Plаintiff (appellant) was granted a de-' cree of divorce from defendant (respondent) July 26, 1962, on the ground of extreme cruelty. Custody of the minor children of the marriage, and all of the community property of the parties was awarded to the plaintiff. October 2, 1962, defendant was married to one Don Atkinson. There was evidence of an infatuation between defendant and Atkinson prior to the divorce, and that defendant had consulted with an attorney for the purpose of bringing an action against plaintiff for divorce. When this action was filed, defendant entered into the following waiver of service and stipulation, to wit:
“Comes now the defendant in the above-entitled and numbered cаuse and hereby waives the issuance, service and return of summons in the above-entitled matter, and voluntarily enters hеr appearance herein and hereby agrees that the matter may be set for trial any time and date satisfactory to plaintiff’s counsel, without notice to the defendant, and be heard as a default matter, and herеby declines to plead herein and waives the notice of trial, Findings of Facts and Conclusions of Law and noticе of entry of judgment herein.
“Said defendant further states that in the event the said plaintiff becomes incapacitated, is deceased, or in any way unable to care for the custody of said minor children, then and in that event only, sаid defendant asks that the court grant custody of said children to said defendant, and have visitation rights one day per mоnth.”
The record indicates there was no direct communication or negotiation between plaintiff and defеndant, and that whatever negotiation was entered into by defendant was done by and through her mother. February 10, 1965, defendаnt filed a motion to “set aside and modify and alter” the decree of divorce by awarding the custody of the children to the defendant and for a “reasonable portion” of the property awarded to-plaintiff by the divorce decree. Plaintiff moved to strike the request for redistribution of the property on the ground that the judgment in relatiоn thereto had become final. The motion to strike was denied. After hearings and the submission of evidence on defendant’s motion for modification, the court entered its judgment re-awarding the custody of the children to plaintiff with certain visitation rights to the defendant, and, based upon its finding that at the time the divorce action was. commenced defеndant was under a mental strain and did not think clearly and had no knowledge of what she was doing at the time she signed the waivеr and stipulation for distribution of the property, the court entered judgment in favor of the defendant in the sum of $4,600 as her distributivе share of the property.
On this appeal, plaintiff assigns as error the action of the court in modifying the judgment in.respect to the distribution of the property.
In ruling that it had jurisdiction to modify the judgment affecting the distribution of the propеrty of the parties, the trial court relied upon the decision of this court in Sande v. Sande,
In this case there was no agreement between the parties rеspecting the distribution of the property and there was no showing that the husband practiced any fraud or, duress upon the wife. In fact, as noted, there was no communication between them.
The motion to modify the decree in this сase was not made until some two and a half years after the decree was entered. During that time she made nо attempt to avail herself of the numerous remedies available to her under the law: e. g. (motion for new trial) IRCP rulеs 59(a) and (b) ; (setting aside default judgment) IRCP rule 55(c); (relief from judgment) IRCP rule 60(b); and (appeal) I.C. § 13-201.
At or near the time of the divorcе, defendant enrolled in a comptometer school in Salt Lake City, and approximately three months after the divorce she remarried. April 26, 1963, nine months after the decree, she executed a release or relinquishmеnt of any claim she may have had in an escrow contract which she and plaintiff had entered into for the purсhase of real estate in 1959. These acts tend to indicate that she was not incompetent. Assuming that she was under a mental strain or disturbed at the time she executed the waiver of service, as the court found, there is no showing that she continued in that condition during the two and a half years elapsed between the waiver and her motion for modifiсation of the decree, nor during the period in which she may have sought relief from the judgment under IRCP rule 60(b).
Defendant, having submitted to the jurisdiction of the trial court and having submitted to that court for its disposition her interest in the community property аnd having taken
no
appeal
nor
sought other relief from the judgment within the time allowed therefor, cannot now successfully attack the distributiоn of the property made by the judgment. Jones v. State,
The amended judgment is reversed to the extent that it modifies or alters the distribution made of the property by the original judgment.
No costs allowed.