No. 83-417 

IN THE SUPRE1.E COURT OF T-HI3 STATE OF f.IONTANA 

1984 

BETTY JEAN GAMMON, 

Plaintiff and Respondent, 

-vsEDWARD LUCIUS GNUION 

Defendant, 

-vsCHRISTIANA, INC., a Penn. Corp., 

Intervenor and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Lerner & Snyder; Alan J. Lerner?acgued, Big Fork, 

!lantana 

For Respondent : 

John L. Peterson argued, Butte, Montana 

Submitted: April 17, 1984 

Decided: June 19, 1984 

Filed: JUN ! ;! ;yuq 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Proposed intervenor Christiana, Inc. (Christiana) 

appeals from the judgment entered by the Fifth Judicial 

District Court, Jefferson County, enforcing the provisions of 

an Oregon divorce decree awarding Betty Jean Gammon (wife) 

title to Montana real property and denying Christians's 

motion to intervene. We reverse and. remand for further 

proceedings. 

The issues are: 

1. Whether the District Court erred in not allowing 

Christiana to intervene in this action as a matter of right 

under Rule 24 (a) (2), M.R.Civ.P.? 

2. Whether the Oregon divorce decree granting wife 

title to Montana. real property is enforceable in the courts 

of this state? 

On November 9, 1982, the Oregon Circuit Court, Yamhill 

County, entered a Judgment of Dissolution of Marriage in 

favor of wife. That judgment was recorded in the Oregon 

court system on November 22, 1983. As part of the judgment, 

the Oregon court stated: 

"The petitioner [wife] is awarded the following 

real property: 

"C. All real property and mining leases and claims 

in the State of Montana to be awarded freely and 

clear of all right, title and interest of the 

respondent, . . . more specifically described in 

attached Exhibits B-1 through B-9, which by this 

reference are incorporated herein, valued at 

$150,000." 

The exhibits attached to the Oregon decree set forth complete 

legal descriptions of the properties. 

This award was incorporated into the Oregon court's 

conclusions of law and was affirmed in the court's decree. 
Wife filed an exemplified copy of the Oregon divorce decree 

in both Jefferson and Madison Counties, Montana. 

After filing of the Oregon decree in Montana, but before 

filing of this action, Edward Lucius Gammon (husband) 

purportedly conveyed title to the Montana real property by 

quitclaim deed and assignment to Christiana. Before this 

action was filed, the assignment and quitclaim deed to 

Christiana were recorded in both Jefferson and Madison 

Counties, where the real properties and mining claims are 

located. 

The president and sole shareholder of Christiana is 

Joseph Lakowski, a Pennsylvania attorney. At the hearing on 

the motion to intervene, Lakowski testified that Christiana 

was formed in November, 1982. Although husband is not a 

shareholder of Christiana, he is Lakowski's client. Husband 

and Lakowski knew of and discussed the legal effect of the 

Oregon divorce decree. Although husband had offered to buy 

wife's interest in the Montana property for $200,000, 

Christiana purchased the Montana real properties from husband 

for $10,000, $5,000 of which was paid in cash, $2,000 of 

which was paid by check, and $3,000 of which is owing but 

unpaid. At the time of this purchase, Christiana, through 

Lakowski, was aware of the Oregon decree and that it had been 

filed in Jefferson and Madison Counties. Lakowski stated 

three reasons for Christiana's purchase of the property. 

First, husband indicated he needed the money. Second, in the 

opinion of Christiana's legal advisors, the Oregon decree was 

void in Montana with respect to title to the real property. 

Third, Christiana felt it had a very good buy for the 

consideration. 
Wife brought this action on March 18, 1983, seeking to 

enforce the Oregon divorce decree pursuant to section 

26-3-203, MCA, which provides: 

"The effect of a judicial record of a sister state 

is the same in this state as in the state where it 

was made, except that it can only be enforced here 

by an action or special proceeding . . ." 

Wife was unsuccessful in her attempts to personally serve 

husband and so served husband by publication, pursuant to 

Rule 4, P4.R.Civ.P. A default judgment was subsequently 

entered against husband. Christiana moved to intervene in 

the action pursuant to Rule 24 (a) (2) , M.R.Civ.P. 

A hearing on the motion to intervene was held on June 7, 

1983. At the hearing, the court heard testimony from 

Lakowski regarding husband's conveyance of the property to 

Christiana a.nd received in evidence the quitclaim deed and 

assignment. The court also heard testimony from Terrance 

Hall, wife's attorney in the Oregon divorce proceedings, 

concerning the effect of the Oregon decree under Oregon law. 

Hall testified that although some decrees issued in Oregon 

include a proviso ordering a party to convey property or put 

documents on record, such a proviso is not necessary under 

the Oregon statute to transfer title immediately. The court 

also heard testimony from wife. 

Christiana asked in its complaint in intervention that 

the court declare wife to have no right, title or interest in 

the real property transferred by husband to Christiana. 

Christiana asked the District Court to recognize that the 

Oregon decree could not affect husband's title to the Montana 

real property and that husband's ownership had been 

transferred to Christiana. Wife requested that the court 

grant the Oregon decree full faith and credit and transfer 

title to the Montana property to wife. 
On June 8, 1983, the court entered its findings, 

conclusions, order and judgment. The court found that the 

Oregon court had personal jurisdiction over both husband and 

wife and that the judgment awarded to wife title to certain 

Monta.na real property owned by the parties in common. The 

court took judicial notice of section 107.105, Oregon Revised 

Statutes, which provides that upon the filing of a decree in 

a dissolution matter, the property division ordered "shall be 

deemed effective for all purposes" and further provides that 

a transfer by decree affects solely owned property as well as 

that owned in common. 

The court further found that consideration for the 

conveyance to Christiana was at most nominal and that there 

was substantial evidence to support a finding that the 

purported transfer was solely for the purpose of avoiding the 

effect of the Oregon judgment. The court specifically found 

that Christiana was incorporated by Lakowski, who had 

discussed with husband the effect of the Oregon judgment on 

his Montana property. As a result, the District Court found 

that husband still claims an interest in the Montana 

property. The court pointed out that the Oregon judgment is 

on appeal to the Oregon Court of Appeals and in that appeal 

husband is contending that the Montana property should be 

placed in trust for his children. 

The District Court then concluded in pertinent part as 

follows: 

" 2 . That on February 24, 1983, Edward Lucius 

Gammon had no interest in the Montana real property 

assigned and conveyed by him to Christiana, Inc. ; 

and, accordingly, Christiana, Inc., did not and 

cannot bring itseLf under the intervenor right 

provisions of Rule 24(a) (2), M.R.Civ.Pro., and thus 

its Motion to intervene and file a Complaint in 

this cause is denied without prejudice to its 

rights to assert any claim or interest in the 

Montana property in some other action, either in 

this forum or elsewhere. 
"3. That the Judgment in Cause No. 38016 of the 

Circuit Court of the State of Oregon . . . is 

entitled to full faith and credit under the laws of 

the Sta-te of Montana. 

"4. It is further ordered that said Judgment be, 

and it is hereby adopted as a Judgment of this 

Court in haec verba as if fully set forth herein . I' . . 

Christiana appeals from the findings, conclusions, order and 

judgment of the District Court. 

Christiana argues the District Court erred in not 

allowing Christiana to intervene in this action as a matter 

of right pursuant to Rule 24 (a) (2), t4.R.Civ.P. We agree. 

Rule 24(a), M.R.Civ.P. states: 

"Upon timely application anyone shall be permitted 

to intervene in an action: (1) when a statute 

confers an unconditional right to intervene; or (2) 

when the applicant claims an interest relating to 

the property or transaction which is the subject of 

the action and he is so situated that the 

disposition of the action may as a practical matter 

impair or impede his ability to protect that 

interest, unless the applicant's interest is 

adequately represented by existing parties." 

(emphasis added) 

The apparent basis upon which the District Court refused 

to allow intervention was that it concluded Christiana had no 

interest in the property subject to the action. However, 

Rule 24 (a) (2) requires only that the proposed intervenor 

claim an interest in the property. Christiana made timely 

application for intervention and claimed an interest relating 

to the property by virtue of a quitclaim deed and assignment. 

It is undisputed that Christiana is so situated that the 

disposition of this action will as a practical matter impair 

or impede its ability to protect its claimed interest. 

Further, because husband did not appear to defend the action 

and was defaulted, no party adequately represents 

Christians's position. Christiana therefore met the 

intervention requirements of Rule 24 (a) (2) , M.R.Civ.P. 
We hold that the District Court erred in not allowing 

Christiana to intervene in this action pursuant to Rule 

24 (a) (2) , M.R.Civ.P. 

I1 

Christiana argues the District Court erred in concluding 

that the Oregon decree operated to divest husband of his 

title to the Montana property and that the decree was 

entitled to full faith and credit in the courts of this 

state. Christiana argues that the Oregon court had no 

extraterritorial jurisdiction over Montana real property. It 

contends that the decree was void ab initio and is not 

entitled to full faith and credit or enforcement as a matter 

of comity. It therefore contends the Oregon decree had no 

effect on husband's title and that title passed to Christiana 

under the quitclaim deed and assignment executed by husband. 

Wife argues that the courts of this state are required 

to recognize foreign divorce decrees based upon the full 

faith and credit clause of the United States Constitution and 

the doctrine of comity. She argues that the Oregon decree 

established the equities and rights between the parties and 

is enforceable in Montana, even though the decree did not of 

itself pass title. She argues it would have been useless to 

order husband to convey title to her because he willfully 

refused to appear in the action or otherwise comply with the 

court's orders. Having sued for enforcement of the Oregon 

decree in Montana, she argues she is entitled to enforcement 

of the Oregon decree and a judgment awarding the Montana 

property to her. 

In Fall v. Eastin (1909), 215 U.S. 1, 30 S.Ct. 3, 54 

L.Ed. 65, the United States Supreme Court established the 

general rule that a court in one state has no 

extraterritorial jurisdiction to affect title to real 
property in another state. Thus, recognition of a divorce 

decree provision which purported to transfer foreign real 

property was not required by the full faith and credit clause 

of the United States Constitution. In Fall, Mrs. Fall 

obtained a divorce judgment in Washington, where she and her 

husband lived.. As part of the decree, the Washington court 

awarded Mrs. Fall land located in Nebraska. The judgment 

ordered Mr. Fall to convey his interest in the Nebraska 

property to Mrs. Fall, and when he failed to do so, the court 

appointed a commissioner who executed a deed. After the 

judgment, Mr. Fall deeded the land to his sister. Mrs. Fall 

brought suit against Mr. Fall's grantee in Nebraska to quiet 

title to the land, relying on the Washington judgment and 

deed to establish her title. The Nebraska Supreme Court 

reversed the trial court's judgment in favor of Mrs. Fall. 

Fall v. Fall (Neb. 1907), 113 N.W. 175, 181. The court held 

that the Washington court was without jurisdiction to affect 

title to Nebraska property. The U.S. Supreme Court affirmed, 

holding that the Nebraska court was not required under the 

circumstances to give full faith and credit to the Washington 

judgment. 215 U.S. at 14, 30 S.Ct. at 9, 54 L.Ed. at 71-72. 

This Court has also recognized the principle that 

foreign courts have no power to directly affect title to real 

property located in Montana. Wilson v. Thelan (1940), 110 

Mont. 305, 311, 100 P.2d 923, 926; In re Estate of Bruhns 

(1920), 58 Mont. 526, 528-29, 193 P. 1115, 1116. Further, 

this Court has recognized that a judgment of a foreign court 

void for lack of jurisdiction is not entitled to full faith 

and credit in the courts of this state. Corkill v. Cloninger 

(1969), 153 Mont. 142, 146, 454 P.2d 911, 913. 

Insofar as the Oregon court attempted to directly 

transfer husband's Montana real property to wife, its act was 
not effective in this state. Insofar as the District Court 

gave effect to the Oregon decree as a direct and 

self-executing transfer of title to Montana real property, it 

was in error and that aspect of the District Court's judgment 

is reversed. 

Christiana argues that the Oregon court's attempt to 

directly transfer title to Montana real property renders the 

decree an absolute nullity. It argues that the decree is 

ineffective even to establish the equities between the 

parties and as such is entirely unenforceable in this state. 

We conclude that Christiana's reading of the decree is 

unreasonably restrictive. The Oregon court, having 

jurisdiction of the parties and the subject matter, was 

empowered to determine the equities between the parties with 

respect to marital property. Reading the decree as a whole, 

we find that the Oregon court intended to establish an 

equitable property division based upon the evidence. The 

record before the court included evidence relating to the 

nature and value of the parties' assets, the financial 

conditions of the parties, the needs of the parties and other 

relevant matters. Based upon this evidence, the court 

equitably divided all real and personal property and awarded 

specific assets to the respective parties. Insofar as the 

court attempted to directly transfer title to Montana real 

property, its attempt was void for want of jurisdiction. 

However, the decree accomplished more than a mere outright 

award of specific assets; clearly, the decree also determined 

on the merits the equities between the parties, 

notwithstanding the specific wording of the decree. The 

decree established wife's right to the Montana property as 

against husband. We therefore reject Christiana's argument 

that the Oregon decree is entirely void and unenforceable. 
A determination of a court of a foreign jurisdiction of 

the equities between the parties in a divorce action is not 

subject to collateral attack in the courts of this state 

unless void on its face. Corkill, 153 Mont. at 150-51, 454 

P.2d at 915. The Oregon c~urt had jurisdiction to determine 

the equities between the parties and did so. This aspect of 

the Oregon decree is valid and entitled to full faith and 

credit in our courts. 

The decision in -- Fall v. Eastin does not preclude this 

result. Fall held only that an attempt to directly transfer 

title to real property in a foreign jurisdiction was 

ineffective and not entitled to full faith and credit. The 

court recognized that a foreign decree could render 

conclusive judgment on the merits of the claim or subject 

matter of the suit. 215 U.S. at 12, 30 S.Ct. at 8, 54 L.Ed. 

at 71. As noted by Justice Holmes in his concurring opinion, 

the Nebraska court had carefully avoided saying that the 

decree would not be binding between the original parties. 

215 U.S. at 15, 30 S.Ct. at 9, 54 L.Ed. at 72. However, to 

give such a determination the force of a judgment in the 

state where the real property is located, it must be made a 

judgment there, 215 U.S. at 12, 30 S.Ct. at 8, 54 L.Ed. at 

71, as wife here seeks to do. 

Fall does not require, as Christiana suggests, that this 

Court refuse to recognize any aspect of the Oregon decree. As 

wife argues, the holding in Fall is not broad enough to 

resolve this case. Significantly, in Fall, Mrs. Fall had 

brought a quiet title action against a third-party grantee. 

She had not sued in the state where the property wa.s located 

to enforce the foreign judgment, but relied in a quiet title 

action upon the foreign decree and deed as alone sufficient 

to establish her title. Fall is distinguishable from this 
case, where wife has sued in Montana to enforce the foreign 

judgment as against husband. Whether husband validly 

divested himself of the property prior to wife's enforcement 

action, so as to preclude a Montana judgment granting her 

title, is a separate issue to he addressed on remand. The 

Oregon decree's determination of the equities between the 

parties is entitled to full faith and credit in the courts of 

this state. 

The Oregon decree is also enforceable in this state 

based upon the doctrine of comity: 

". . . [A]n equally compelling reason for refusing . . . the right to collaterally attack the divorce 

decree of the Nevada court is the decent regard and 

respect we owe to the judgments of the courts of 

sister states. Even though the full faith and 

credit clause of the Federal Constitution does not 

prohibit a collateral attack on the Nevada decree, 

the rules of comity prevent such an attack. 

"Unless the public policy of the state would 

prevent the recognition of the decree or such 

recognition would be injurious to the best 

interests of the state we must recognize the force 

and effect of the decrees of our sister states and 

enforce them in the same manner that they enforce 

the decrees of courts of our state." In Re 

Anderson's Estate (1948), 121 Mont. 515, 524-25, 

194 P.2d 621, 625-26. 

In Kane v. Kane (Mont. 1982) 646 P.2d 505, 39 St.Rep. 1036, 

this Court affirmed the trial court's decision declining to 

exercise jurisdiction in a dispute arising out of a Wyoming 

divorce decree. This Court found that although the full 

faith and credit clause did not prohibit the Montana court 

from exercising jurisdiction, the trial court properly 

declined to exercise jurisdiction as a matter of comity, 

which was characterized as a voluntary recognition of the 

proceedings of a sister state. 646 P.2d at 507, 39 St.Rep. 

at 1038. By invoking the doctrine of comity, this Court 
recognized the prerogative of the Wyoming court to 

conclusively determine the equities between the parties. 

Christiana contends that the case of Mieyr v. Federal 

Surety Company (1934), 97 Mont. 503, 34 P.2d 982, stands for 

the proposition that this Court will not enforce the judgment 

of a sister state under the doctrine of comity unless that 

state would enforce a Montana decree under the same 

circumstances. Christiana further argues that the Oregon 

court has previously held similar decrees to be unenforceable 

and therefore this Court should decline to enforce the Oregon 

decree. 

However, Mieyr does not support Christhna ' s argument. 

In Mieyr, a receiver was appointed by an Iowa court for a 

defunct corporation which had property in Montana. A Montana 

creditor of the corporation obtained in a Montana court a 

judgment and writ of execution and levied upon the assets of 

the corporation. Later, the Iowa receiver appeared in 

Montana claiming that his interest in the Montana property 

should prevail over the interest of the local judgment 

creditor. This Court rejected the claim of the Iowa receiver 

because it apparently concluded that the Montana public 

policy of enforcing priority rules as to creditors outweighed 

the policy of comity. 97 Mont. at 515-16, 34 P.2d at 988. 

Mieyr does not require reciprocity as a prerequisite to 

enforcement of a foreign decree based upon comity; it merely 

required the foreign receiver to compete on an equal basis 

with Montana creditors. 

In any event, the cases cited by Christiana do not 

demonstrate that Oregon would refuse to recognize a similar 

decree entered by the courts of Montana. In Robinson v. 

Scott (Or. 1916), 158 P. 268, the court held, in a quiet 

title action between successors in interest of both husband 
and wife, that a foreign decree was insufficient in and of 

itself to vest title to lands in Oregon. 158 P. at 270. In 

Baird v. Baird (Or. 1920), 188 P. 699, the court held that 

the Oregon trial court had no authority in a divorce action 

to award title to Indiana real property. 188 P. a.t 700. 

Neither Robinson nor Baird held that an Oregon court would 

not as a matter of comity recognize the equities established 

by a foreign divorce decree. 

Finally, we find no public policy of the State of 

Montana which precludes recognition of the equit2es 

established by the Oregon decree. Christiana argues that to 

give effect to the Oregon decree would allow the courts of 

foreign jurisdictions to exercise -- in rem jurisdiction over 

Montana real property, in contravention of the public policy 

of this Sta.te. However, because such a decree is ineffective 

in itself to affect title, but rather depends for its 

effectiveness upon obtaining an enforcement judgment in a 

Montana court, recognition of the decree does not allow 

foreign courts to exercise jurisdiction over Montana real 

property. Moreover, the Oregon decree establishes only the 

rights between the parties in that action; it does not 

determine title -- in rem. Because the effectiveness of the 

foreign judgment in Montana depends upon enforcement by 

Montana courts, Christians's argument in this regard is 

without merit. 

Further, the precise wording of the Oregon decree does 

not prevent this Court from enforcing its equities as a 

matter of comity. 

We hold that the District Court erred in concluding that 

the Oregon decree was in itself effective to transfer title 

to Montana real property. However, we further hold that, in 

an enforcement action in this state, the Oregon decree is an 
enforceable determination of the rights and equities between 

husband and wife with respect to the Montana real property in 

question. 

We reverse the judgment of the District Court and remand 

far further proceedings consistent with this opinion, 

including granting of Christians's motion to intervene, 

further pleadings on the issue of title to the subject real 

property, and further proceedings consistent with this 

opinion as the District Court deems advisable. 

We concur: 

'%k.--~fi@ 

Chief ~ustice " mq