No. 13393 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

ELEANOR H. CICINIA, Plaintiff and Respondent,

GAETANO T. CICINIA, Defendant and Appellant.
Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Keller, Judgepresiding. Counsel of Record: For Appellant: Moore and Lyrnpus, Kalispell, Montana James D. Moore argued, Kalispell, Montana For Respondent: Warden, Walterskirchen & Christiansen, Kalispell,

Montana Gary R. Christiansen argued, Kalispell, Montana

Filed: Submitted: March 14, 1977 Decided:

### JUR

### 2e

# 4977Mr. Jusrice Gene 3. Daly delivered the Opinion of the Court.
The district court, Flathead County, sittingwithout a jury, Hon. Robert S. Keller, District Judge presiding, granted MrkTiFF 

# L inan action sace. summary judgment to 

### U-g alimony provisions of a foreign divorce decree. Eleanor Cicinia obtained a default divorce decree on grounds of desertion, incorporating a voluntary property settlement agreement part of which gave her $75 per week, payable each Monday for thebalance of her life, unless she remarried. This amount was to include child support and minor medical care until the children reached majority. The parties were married in 1940 and the decree nisiwas dated February 25, 1965, in the stateof New Jersey. Defendant remarried and adopted the children of hispresent wife and moved to Kalispell, Montana in 1973. Defendant operates
a business entitled "Northwest Sports, Inc.". Defendant defaulted inhis alimony payments. On June 27, 1974, plaintiff brought an action inNew Jersey to determine arrearage, increase alimony, and determine attorney fees. Defendant filed two affidavits inhisbehalf inaddition to a deposition. He was represented atthehearing by a New Jersey law firm but did not appear inperson. The New Jersey court on April 25, 1975 grantedjudgment in the sum of $3,995. Plaintiff's prayer for additional alimony was denied. On June 23, 1975, the New Jersey court awarded attorney fees inthe amount of $2,000 and $196.80 in costs. The New Jersey judgment was not appealed inNew Jersey.The present actionwas filed inMontana toenforce theNew Jerseyjudgment on September 15, 1975. Defendant contends thejudgment cannot be enforced in Montana as it contravenes the constitutional and statutory rights of defendant and 

### isagainst public policy of the state of Montana. Defendant alsopetitions theMontana court tomodify the New Jersey decree prospectively and retroactively. 

### In this regard, defendant speaks to the modification of the "decree nisi" of February 25, 1965, yet the record indicated this decree was made finalMay 26, 1965. Hon. Robert S. Keller, districtjudge, entered summary judgment May 5, 1976, under Rule 56, M.R.Civ.P., afterbriefs were submitted and oralargument heard, forplaintiff on the New Jerseyjudgment with the memo: "The Defendant raises no factual issues. The answer tothe complaint, consists of conclusions, which raise issues of law, and are res adjudicata. "The 'counter-petition' to the complaint 

### is something this Court does not understand." Defendant appeals from the summary judgment of the district court and presents these issues tothis Court for review: 

### 1. Can summary judgment be entered on a foreign decree which enforcement of contravenespublic policy or laws of Montana? 2. Does full faithand credit compel enforcement of a foreign decree that lacks finality inNew Jersey? 

### 4. Can a decree of divorce issued inanother statebe modified inMontana? Defendant appeared by counsel and affidavit and deposition indefense of hisposition atthe court hearing inNew Jersey, which denied him relief on April 25, 1975. He did not challengethe finality of that court's judgment on which the hearing was brought or challenge the court's jurisdiction, nor did he appeal from that court's judgment. We note here that at alltimes pertinent hereto, defendant has been vigorously represented by counsel. The New Jersey judgments were finaljudgments rendered by a court which had proper jurisdiction only after an adversary proceeding. The Montana actionmerely seeks a judgment based upon the finaljudgments of the New Jersey court. The doctrines of res judicata and collateral estoppel bar the relitigation of the matters determined by the New Jersey court. The doctrine of full faith and credit allows the enforcement of thejudgment. Art. IV, Section 

### '1, United States Constitution; Section 93- 1001-20, R.C.M. 1947; 47 Am.Jur.2d, Judgments 

### $5 1226,1227,1230. The trial court correctly stated that the pleadings of defendant raiseno fact issues but ultimate issues of law which
are res adjudicata.

r-2 Judgment of the trialcourt is affirmed.
,, /.' "

Justice 

# 4 W_e_ Concur: r' 

# 1



# ,.._4-

'. 

# *

Chief Justice 

# A