Contra Costa County Ex Rel. Petersen v. Petersen

451 N.W.2d 390, 234 Neb. 418, 1990 Neb. LEXIS 41
CourtNebraska Supreme Court
DecidedFebruary 16, 1990
Docket87-1068
StatusPublished
Cited by12 cases

This text of 451 N.W.2d 390 (Contra Costa County Ex Rel. Petersen v. Petersen) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Contra Costa County Ex Rel. Petersen v. Petersen, 451 N.W.2d 390, 234 Neb. 418, 1990 Neb. LEXIS 41 (Neb. 1990).

Opinions

[419]*419Hastings, C.J.

This is an appeal from the order of the district court in a proceeding under the Revised Uniform Reciprocal Enforcement of Support Act, Neb. Rev. Stat. §§ 42-762 et seq. (Reissue 1988) (RURESA). The trial court found the sum of $17,694.30 to be due and owing relator by the respondent as a result of a California divorce decree and ordered the respondent to pay said amount in monthly payments of $ 150.

The pleadings alleged and the proof supported a duty of support based on a March 14,1967, interlocutory judgment of divorce and a January 22, 1968, final judgment of divorce entered by the superior court for the County of Los Angeles, California, in favor of the relator and against the respondent herein. Those decrees required the respondent to pay to the relator the sum of $12.50 per week for each of two children, commencing March 18, 1967, and continuing with respect to each child until such child reached the age of 21 or until emancipation. The certificate for support from the California court recited that only $50 had been paid on the judgment and that there was $24,060.50 in arrears of said judgment as of December 19, 1986, with a request that the respondent be ordered to pay a reasonable amount on such arrearage. The answer filed by the respondent was essentially a general denial, with an allegation of the affirmative defense of laches.

The relator testified that but for $50, the respondent had paid her nothing by way of support since the entry of the California decree. The California decree was received in evidence over the objection of the respondent. Relator admitted that respondent’s parents, the children’s grandparents, had made substantial payments directly to the two children throughout the years, which she claimed generally were in the nature of gifts. She also agreed that she had received monthly payments of $35 or $50 during a 14-year period, totaling $7,500, from respondent’s parents. However, although she used that money for support of her children and herself, she denied any agreement or information which would lead her to believe that these payments were being made in behalf of the respondent to apply on the divorce decree. Relator also estimated that she had paid a total of $10,000 on medical [420]*420expense during the period of time from the divorce until the children reached the age of 21 or became emancipated.

The trial court in its order determined that there was $24,060.50 accrued but unpaid child support pursuant to the final judgment of divorce entered in the California court; determined that there were accrued and unpaid medical and dental expenses, authorized by that final judgment, in the amount of $5,000; and determined that others had paid on behalf of the respondent for child support and medical and dental expenses the amount of $11,366.20. It was in this manner that the trial court arrived at the amount of the present judgment of $17,694.30.

Appellant’s assignments of error may be distilled into one: that the trial court should have made an independent determination of the amount owed for support for the children rather than to have adopted the amount set forth in the California decrees. Appellee has cross-appealed, claiming that the court erred in admitting an affidavit submitted by respondent’s parents as to amounts which they paid to relator and the purpose for which the payments were made, that the court erred in giving respondent credit for payments made by his parents, and that the court erred in determining the amount to which relator was entitled for medical expense incurred.

The basic question raised by this appeal is whether in a RURESA action the Nebraska court, as a responding court, is entitled to rely on the prior support decree of another court, here the California court, to establish the duty of support and the extent thereof to the date of filing. Stated another way, must the responding court ignore that decree and the amount of support that has accrued under such decree as of the date of trial and then, based on the evidence received at trial, independent of the foreign decree, determine anew the duty of support and the amount thereof for the period passed?

Respondent objected to the reception into evidence of the California decree on two grounds: first, that the final decree was issued a matter of 9 months after the interlocutory decree, whereas California law requires that it be done after 1 year, and second, the decree was not relevant to the finding by the Nebraska court of the duty and degree of support required of [421]*421the respondent.

Addressing the first issue, it is true that the final decree, dated January 22, 1968, states in substance that an interlocutory decree was entered in March 1967 and that “more than one year having expired in accordance with Section 1342 Civil Code” (California), “it is adjudged that plaintiff be and is granted a final judgment of divorce...”

Respondent challenges the validity of both documents by seeking to collaterally attack them on appeal. At no time has the respondent attempted to set aside, modify, or appeal the California support order.

In Koch v. Koch, 175 Neb. 737, 123 N.W.2d 642 (1963), and Attebery v. Attebery, 172 Neb. 671, 111 N.W.2d 553 (1961), this court held under somewhat similar circumstances that one who has by his or her conduct relied upon the validity of a divorce decree generally is estopped from denying its validity to the prejudice of the other party. In Attebery, the former husband was estopped from assailing the validity of the divorce decree because he (1) waited nearly 20 years after his wife obtained the decree to attack it, (2) had timely notice of the proceeding in which it was entered, (3) left his children to be cared for and nurtured by the divorced wife and her second husband, and (4) was himself remarried. All of these factors are present here, and respondent is estopped from assailing the validity of the California divorce decrees. Such a conclusion is also consistent with the California rule. See Matter of Estate of Birch, 140 Cal. App. 3d 776, 189 Cal. Rptr. 796 (1983).

As to the relevance of the decrees, § 42-784, a part of the RURESA provisions, provides in part as follows:

If the action is based on a support order issued by another court, a certified copy of the order shall be received as evidence of the duty of support, subject only to any defenses available to an obligor with respect to paternity as set forth in section 42-788, or to a defendant in an action, or a proceeding to enforce a foreign money judgment.

However, respondent argues that the district court here should have made an independent determination of the amount owed for the support of the children during their minority [422]*422instead of adopting the amount set forth in the California decrees.

Respondent cites us to State of Iowa ex rel. Petersen v. Miner, 226 Neb. 551, 412 N.W.2d 832 (1987), and Chisholm v. Chisholm, 197 Neb. 828,

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Contra Costa County Ex Rel. Petersen v. Petersen
451 N.W.2d 390 (Nebraska Supreme Court, 1990)

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451 N.W.2d 390, 234 Neb. 418, 1990 Neb. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/contra-costa-county-ex-rel-petersen-v-petersen-neb-1990.