No. 88-122 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

JULIANNE P. PARRISH, formerly 

JULIANNE P . APPLETON 

Petitioner and Appellant, 

and 

JERE THOMAS APPLETON 

Respondent and Respondent. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COIJNSEL OF RECORD: 

For Appellant: 

Douglas & Sprinkle; S.Charles Sprinkle, I,ibby, Montana 

For Respondent: 

I- 

& 

Donald. L. Shaffer, Libby, Montana 

a3 

Submitted on Briefs: Sept. 1, 1988 

Decided: October 20, 1988 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Jere Thomas Appleton (Jere) appeals from the judgment of 

the District Court of the Nineteenth Judicial District, 

Lincoln County. The court held it had jurisdiction to enter 

the original dissolution decree in this case and granted a 

motion by Julianne P. Parrish, f.k.a. Julianne Appleton 

(Julie) , for increased child support. We affirm the court's 

decision, but remand for modification of the child support 

award. 

Jere presents four main issues in his appeal: 

1. Did the District Court have jurisdiction to enter the 

original judgment and decree? 

2. Has all or part of the judgment for child support 

arrearage obtained by Julie lapsed or become subject to 

laches and estoppel? 

3. Does the absence of responsive pleadings or briefs 

require reversal under the Uniform District Court Rules? 

4. Was there sufficient evidence to support an increase 

in child support? 

The facts are essentially agreed upon by the parties. 

Jere and Julie were married in Tennessee in 1965. They had 

two sons: John in 1966 and Michael in 1967. In early 1972, 

Julie moved with the two children to Texas. In June of that 

same year, Jere obtained a default judgment in Tennessee 

dissolving the marriage. Service of the judgment was made by 

publication in accordance with Tennessee law. 

In September, 1972, Julie and Jere reconciled and began 

living together in Texas. Julie had not received a copy of 

the Tennessee divorce decree, and Jere did not tell her about 

it. Two more children were born: Tim in 1973 and Jenny in 

1976. In 1979, the family moved to Montana. Relations 
between Julie and Jere deteriorated. While it is not clear 

from the record, it appears that approximately six months 

after they took up residence in Montana, Julie told Jere she 

wanted him to leave. She also said she was planning to file 

for divorce. Jere then told Julie they were already 

divorced. At some point after this conversation Jere left, 

taking one of the children with him. 

On July 30, 1980, Julie executed a petition for 

dissolution which was then filed in Montana District Court. 

The petition referred to the 1965 Tennessee marriage. Notice 

of the proceeding was personally served on Jere in Tennessee 

on August 11, 1980. Jere did not appear in the original 

proceeding, but his attorney wrote to counsel for Julie and 

informed him that the marriage had been dissolved in 1972. 

Julie's attorney replied with a letter informing Jere's 

attorney that Montana recognizes common-law marriage, and 

that Julie's main goal was to obtain child support from Jere. 

On October 6, 1980, the District Court granted Julie a decree 

of dissolution. 

In April, 1987, Jere filed a motion in the District 

Court requesting the 1980 dissolution decree be declared 

invalid on the grounds that the court lacked jurisdiction, or 

alternatively, that the decree was obtained through 

"extrinsic constructive fraud.'' In June, 1987, Julie filed a. 

motion seeking an increase in child support. Neither party 

responded to the other's motion. Hearing on the two motions 

was had on June 22, 1987, and the court issued its judgment 

on September 10, 1987. This appeal followed. 

I. 

Jere attacks the District Court's jurisdiction to enter 

the 1980 decree. He argues: (1) the court never obtained in 

personam jurisdiction over him under Rule 4B, M.R.Civ.P., (2) 
the judgment is void because it was pre-empted by the Uniform 

Reciprocal Enforcement of Support Act (URESA), and (3) the 

proceeding was void because Julie's petition amounted to 

"extrinsic constructive fraud." 

Rule 4B, M.R.Civ.P., confers in personam jurisdiction to 

the courts of Montana over "[a] 11 persons found within the 

state of Montana" and all persons whose actions within the 

state subject them to long-arm jurisdiction. Jere contends 

he was residing in Tennessee when served with process and 

took no action that would subject him to long-arm 

jurisdiction. He argues the District Court therefore lacked 

in personam jurisdiction to enter a money judgment against 

him. 

A divorce action is generally in rem as to the status of 

the parties, and in personam as to other matters. Bad Horse 

v. Bad Horse (1974), 163 Mont. 445, 517 P.2d 893. The 

District Court therefore did not need in personam 

jurisdiction to grant the dissolution. Montana law in effect 

at the time of the 1980 hearing specifically granted 

jurisdiction to determine custody where the children involved 

were living within the state. Section 40-4-211, MCA (1979). 

The District Court therefore had jurisdiction to grant 

custody of Michael, Tim and Jenny, who were living in Montana 

in 1980. The District Court was without jurisdiction in 1980 

to grant custody of John, who had left Montana with his 

father and was living in Tennessee. The court was also 

without jurisdiction to order child support from Jere, as it 

did not have in personam jurisdiction over him under Rule 4BI 

M.R.Civ.P. 

In 1985, Julie initiated a URESA action in Montana to 

obtain payment of child support. Under URESA, she was able 

to seek the assistance of Tennessee courts in obtaining 

support. Jere argues the URESA proceedings pre-empted the 
District Court, because jurisdiction over the divorce had 

become vested in a Tennessee court. This argument is without 

merit. URESA, as adopted in Montana and Tennessee, provides: 

The remedies herein provided are in addition to and 

not in substitution for any other remedies. 

Section 40-5-104, MCA; see, S 36-5-203, TCA. 

Jere's final attack on the District Court's jurisdiction 

asserts the decree was obtained through extrinsic 

constructive fraud. He points out Julie's pleading was based 

on the 1965 marriage, yet did not mention the Tennessee 

divorce decree. No allegation of common-law marriage was 

made, nor was there any mention of Jere's Tennessee 

residency. Jere argues these errors and omissions, while not 

intentionally fraudulent, worked fraud upon the court by 

alleging a legal marriage that did not exist. He asserts a 

court sitting in equity has inherent power to grant relief 

from a judgment obtained through fraud, citing Selway v. 

Burns (1967), 150 Mont. 1, 429 P.2d 640. 

A court hearing a divorce action sits in equity. 

Johnson v. Johnson (1960), 137 Mont. 11, 349 P.2d 310. 

However, a well-established tenet of equity is that one who 

seeks equity must do equity. Barbour v. Barbour (1958), 134 

Mont. 317, 330 P.2d 1093. 

Julie's 1980 dissolution petition was indeed based on 

the 1965 marriage; did not mention the Tennessee divorce 

decree; and listed the address of all family members as 

Libby, Montana. The petition was nonetheless made in good 

faith. Jere had concealed the existence of the Tennessee 

decree from Julie for nearly eight years. His disclosure, 

when it finally came, was made in response to Julie's 

statement that she was contemplating filing for divorce. 
Given her lack of actual notice of the Tennessee decree, it 

is understandable that Julie might not believe Jere. 

As to the addresses, the petition was filed on August 1, 

1980. Jere was found and service effected on him in 

Tennessee on August 11, 1980. According to the affidavit of 

John, the eldest child, he and his father left Montana some 

time in August. When the petition was filed, Julie knew of 

no address for Jere other than his most recent one in Libby. 

Jere and Julie were married when Julie filed her 

petition in District Court. They had been living together 

and holding themselves out as husband and wife in Texas and 

in Montana. A common-law marriage therefore existed between 

them under $ 26-1-602(30), MCA. Spradlin v. U.S. (D.C. Mont. 

1967), 262 F.Supp. 502. The District Court noted in its 

conclusions of law from the 1987 hearing: 

Whether or not the parties intended to resume the 

formalized marriage or to create a new marriage by 

common law is irrelevant since the only 

prerequisite to a Montana dissolution decree is 

that a marriage of some form existed between the 

parties. 

Given Jere's own acts of deceit and Julie's good faith in 

pleading, we see no reason to grant Jere equitable relief by 

voiding the 1980 decree. 

Finally, we note Jere appeared through counsel at the 

1987 hearing. At that point, the court obtained in personam 

jurisdiction over him. Rule 4B(2), M.R.Civ.P. We have held 

a District Court can award child support retroactively when 

the issue is properly before the court pursuant to the 

parties' pleadings. In re Marriage of DiPasquale (Mont. 

1986), 716 P.2d 223, 225, 43 St.Rep. 557, 559. However, no 

issue of retroactive support was before the court in this 

case. Julie's motion for modification sought an increase in 
support to $200 per month, but did not seek support 

retroactive to 1980. Therefore, the only issue of child 

support before the court at the 1987 hearing was whether 

Julie was entitled to payments of $200 per month. 

We affirm the District Court's decision that it had 

jurisdiction in this matter, and its award of $200 per month 

in child support beginning in 1987. However, we hold the 

court was without in personam jurisdiction to award child 

support in 1980, and could not in 1987 make an award of 

retroactive support when it was not sought in the pleadings. 

11. 

Jere next argues the District Court's award of arrears 

in child support has lapsed, or is subject to laches and 

estoppel. This argument is rendered moot by our 

determination above that the court could not award child 

support for periods prior to 1987. 

Jere points out no pleading was filed in response to his 

motion to void the 1980 decree, nor any brief filed in 

support of Julie's motion for modification of child support. 

He argues the Uniform District Court Rules (UDCR) therefore 

dictate his motion should be deemed "well-taken," and Julie's 

deemed "without merit." 

Julie filed an affidavit in support of her motion, hut 

filed no brief. Jere, however, did no better. His motion 

was also supported only by an affidavit. While Jere ' s 

affidavit was labeled "Brief in Support of Motion," it 

contained nothing more than his sworn statement. Neither 

party responded to the other's motion. Accepting Jere's 

argument would 1.ead to the absurd conclusion that the court 
had before it two motions deemed well-taken, and at the same 

time without merit. 

Pursuant to Rule 2, UDCR, the District Court held oral 

argument on both motions. This gave Jere and Julie an 

opportunity to argue in support of their own motion and 

against each other's motion. The court followed a wise 

course, and we see no reason to overturn its a-ecision on 

technical grounds. 

IV. 

Finally, Jere argues there was not sufficient evidence 

to support an increase in child support. Because we held 

above the District Court's award of support in 1980 was void, 

discussing modification of that award would be illogical. We 

will therefore treat the court's 1987 award of $200 per month 

as an initial child support award rather than a modification. 

The District Court has authority to require either or 

both parents to pay "reasonable or necessary" child support. 

Section 40-4-204, MCA. An award of child support made by the 

District Court will not be overturned unless there has been a 

clear abuse of discretion resulting in substantial injustice. 

In re Marriage of Alt (Mont. 1985), 708 P.2d 258, 42 St.Rep. 

1621. 

The record contains affidavits, pleadings and written 

testimony from the URESA action, and the Tennessee judgment 

obtained by Julie directing Jere to pay child support. The 

combination of these documents and Julie's testimony at the 

1987 hearing shows her earning power, financial resources and 

liabilities; the needs of her children; and the determination 

of another court that she is entitled to $200 per month in 

support. Given this evidence, the District Court did not 

abuse its discretion by awarding child support of $200 per 

month. 
We affirm the decision of the District Court, but remand 

the case to have stricken that portion of the judgment 

awarding retroactive child support for periods prior to 1987. 

HE- Justice