JOY V. JOY, 1987-NMCA-031, 105 N.M. 571,
734 P.2d 811 (Ct. App. 1987)
Johnny Wayne Joy, Petitioner-Appellant,
vs.
Annette Christine Joy, Respondent-Appellee
COURT OF APPEALS OF NEW MEXICO
1987-NMCA-031, 105 N.M. 571, 734 P.2d 811
APPEAL FROM THE DISTRICT COURT OF
CHAVES COUNTY, PAUL SNEAD, Judge.
Certiorari Not Applied For
RICHARD L. KRAFT, SANDERS, BRUIN, COLL
& WORLEY, P.A., Roswell, for Petitioner-Appellant.
KEVIN J. HANRATTY, KLIPSTINE &
HANRATTY, Artesia, for Respondent-Appellee.
{1} Husband appeals from an
order entered pursuant to NMSA 1978, Civ.P. Rule 60(b) (Repl. Pamp.1980)
(recompiled as SCRA 1986, Rule 1-060(B)), vacating a decree of divorce
approximately six months after it was entered and dismissing the action without
prejudice. The central issue raised on appeal is whether the evidence adduced
at the motion to vacate the decree, indicating that the parties continued to
live together and share the same residence for approximately one week after the
filing of a petition for dissolution of marriage, deprived the court of
jurisdiction to enter a decree dissolving the marriage of the parties. Reversed
and remanded.
{2} Husband filed a petition for
dissolution of marriage on November 14, 1984, in the Chaves County District
Court. The verified petition alleged, among other things, that "a state of
incompatibility has arisen between [the parties] making it impossible for them
to live together as husband and wife." Wife did not file an answer to the
petition for divorce nor did she deny husband's allegations of incompatibility.
Thereafter, wife, who was unrepresented by counsel, signed a stipulated marital
settlement agreement providing for division of community property, debts, and
custody of the two minor children of the parties. Wife agreed in the marital
settlement that a final decree of divorce could be entered "on the grounds
of incompatibility." Wife also filed a waiver of notice of hearing as to
any further proceedings in the cause. The trial court approved the marital
settlement agreement and entered a final decree dissolving the marriage on
November 29, 1984, based upon the incompatibility of the parties.
{3} On December 26, 1984,
wife, through newly employed counsel, filed a motion under Civ.P. Rule 60(b),
seeking to modify the decree and to set aside the property settlement agreement
based upon the existence of alleged mutual mistake, unawareness of the parties
of the nature and extent of community assets and other equitable grounds. At
the hearing on the above motion, wife's counsel also argued that the trial
court lacked jurisdiction because the parties continued living together after
the filing of the petition for dissolution of marriage.
{4} Wife testified at the
hearing on the motion that she had continued to live with husband, sharing the
same residence and bed, for approximately one week after the petition for
divorce had been filed. Wife further testified that she had no knowledge
{*573} that the petition for divorce had been
filed until husband came home and informed her that he had been to his lawyer's
office and had filed the petition. Husband was questioned as to whether he had
continued to reside with wife at the time the petition for divorce was filed
and he invoked his fifth amendment privilege.
{5} Thereafter, on May 24,
1985, the trial court entered an order vacating the prior judgment and
dismissing the cause based upon the following findings:
1. The original petition in this cause was filed on November
14, 1984. At that time the parties were not separated; they continued to live
together in cohabitation as husband and wife for at least one week following
filing of the petition.
2. By reason of the foregoing, the Court lacked jurisdiction
of the cause and the judgment should be set aside.
{6} On June 4, 1985, husband
filed a motion to set aside the order vacating the judgment and dismissing the
case. The trial court denied the motion on June 12, 1985.
{7} Husband argues that the
trial court erroneously concluded that continued residence by the parties in
the same home deprived the court of jurisdiction to grant dissolution of the
marriage. Husband contends he satisfied all jurisdictional requisites under
NMSA 1978, Sections
40-4-4 and -5 (Repl.1986), regarding domicile and residence
for granting the divorce and that no other statute or requirement deprived the
trial court of jurisdiction. Husband also asserts that he presented sufficient
evidence to establish that a state of incompatibility existed and continues to
exist between the parties. He also argues that the fact that the parties
temporarily continued to reside together after the filing of the petition for
divorce only went to the weight of the evidence concerning the issue of
incompatibility and not to the jurisdiction of the court.
See Buckner v.
Buckner,
95 N.M. 337,
622 P.2d 242 (1981); NMSA 1978, §
40-4-2 (Repl.1986).
Husband also contends that once a finding is made that the parties are
incompatible, a divorce must be entered.
See Buckner; Garner v. Garner,
85 N.M. 324,
512 P.2d 84 (1973).
{8} The legislature's
adoption of incompatibility as a ground for dissolution of marriage carried
with it the correlative effect of abolishing the traditional or common-law
defenses to divorce.
See Garner. The essential prerequisites to
establish a party's right to a dissolution of marriage on the ground of
incompatibility are proof of domicile, residence and the existence of facts
showing that the parties are irreconcilably incompatible. §§ 40-4-2, -5.
See
also State ex rel. DuBois v. Ryan,
85 N.M. 575,
514 P.2d 851 (1973);
Garner;
Poteet v. Poteet,
45 N.M. 214,
114 P.2d 91 (1941).
Cf. Heckathorn v.
Heckathorn,
77 N.M. 369,
423 P.2d 410 (1967).
{9} New Mexico recognizes
four separate grounds for divorce, including incompatibility. NMSA 1978, §
40-4-1(A) (Repl.1986). Where petitioner seeks a dissolution of marriage on a
ground other than compatibility, cohabitation or continued residence together by
the parties, following the filing of a petition for divorce, gives rise to the
affirmative defense of condonation. Condonation is forgiveness, either express
or implied, of antecedent matrimonial misconduct.
Richardson v. Richardson,
124 Colo. 240, 236 P.2d 121 (1951) (en banc). Whether or not condonation
exists, requires a factual determination based upon the evidence before the
court.
Zildjian v. Zildjian, 8 Mass. App. 1, 391 N.E.2d 697 (1979).
Condonation, however, is a "fault defense" which no longer exists
under our no-fault statute.
Peltola v. Peltola, 79 Mich. App. 709, 263
N.W.2d 25 (1977).
See also In re Marriage of Franks, 189 Colo. 499, 542
P.2d 845 (1975) (en banc);
Ryan v. Ryan, 277 So.2d 266 (Fla.1973).
Cf.
Chester v. Chester, 76 Cal. App.2d 265, 172 P.2d 924 (1946).
{10} Husband denies that the
parties' sharing of the home and sleeping in the same bed for a week amounted
to cohabitation as man and wife and challenges the sufficiency of the evidence
to support this finding of the trial court. Husband further argues that the
fact that the parties may have continued to temporarily reside together,
{*574} absent a showing of reconciliation,
does not constitute justification to deny dissolution of the marriage where the
basis for the divorce is premised upon the incompatibility of the parties and
both parties agree to the fact of incompatibility.
See Smith v. Smith,
322 So.2d 580 (Fla. App.1975) (court required clear showing of intent to
reconcile to justify denying dissolution under Florida's no-fault dissolution
of marriage laws).
{11} We agree with that
portion of husband's argument that evidence of cohabitation or continued
residence together by the parties after filing a petition for divorce based on
incompatibility does not automatically deprive the court of jurisdiction or
mandate dismissal of the divorce proceedings as a matter of law.
Cf.
McGaughy v. McGaughy, 410 Ill. 596, 102 N.E.2d 806 (1951);
Claude v.
Claude, 180 Or. 62, 174 P.2d 179 (1946). Continued cohabitation following
commencement of a divorce action may, however, indicate that the marriage is
not, after all, irretrievably broken. As a general rule, it is not the policy
of the law to separate parties who have not separated themselves.
See Berman
v. Berman, 277 A.D. 560, 101 N.Y.S.2d 206 (1950). The actions of the
parties may serve to indicate that the marriage is still viable, and a party
alleging incompatibility as a basis for dissolution of marriage must present
evidence to establish the fact of incompatibility.
{12} In the present case,
however, wife did not file an answer to husband's complaint nor contest
husband's allegation that the parties were in fact incompatible. Wife expressly
agreed in the marital settlement agreement "that a final decree may be
entered granting the dissolution of marriage... on the ground of
incompatibility." Additionally, wife's written motion under Rule 60(b) for
modification of the decree and property settlement did not seek nullification
of the decree of divorce. Generally, where a party does not controvert a fact
in a responsive pleading, the fact is not in issue.
Carew v. Carew, 175
Cal. App.2d 706, 346 P.2d 845 (1959);
Makovsky v. Makovsky, 158 Cal.
App.2d 738, 323 P.2d 562 (1958).
Cf. Romero v. S.S. Kresge Co.,
95 N.M.
484,
623 P.2d 998 (Ct. App.1981). Here, both husband and wife agreed concerning
the fact of incompatibility. In New Mexico, where jurisdiction, residence and
the fact of incompatibility is shown to exist, the court has no discretionary
right to deny the divorce.
Buckner. Public policy favors the finality of
judgments and a decree of divorce once entered should not be vacated or set
aside, except upon a showing of an absence of jurisdiction, or good cause
supported by facts found by the court justifying the relief.
See Harder v.
Harder, 49 Or. App. 582, 619 P.2d 1367 (1980);
see also Rule 60(b).
{13} The trial court's order
vacating the decree of divorce and dismissing the action was erroneously
premised upon the belief that the district court lacked jurisdiction. The cause
is reversed and remanded with directions to reinstate the decree of divorce and
to address wife's Rule 60(b) motion for modification of the decree and property
settlement agreement on the merits.
WE CONCUR: LORENZO F. GARCIA, Judge, HARVEY FRUMAN, Judge.