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Erwin v. State

August 18, 2010

DUANE ALLEN ERWIN, APPELLANT (PETITIONER),
v.
STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES; AND CHERRIN B. GODAK, APPELLEES (RESPONDENTS).



Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge.

The opinion of the court was delivered by: Burke, Justice

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] Appellant, Duane Allen Erwin, challenges the district court's order denying his petition to set aside a Montana divorce decree. We find no error and affirm.

ISSUE

[¶2] Did the district court err in denying Appellant's petition to declare the Montana divorce decree invalid?*fn2

FACTS

[¶3] Most of the facts appear to be undisputed. Appellant and Mother married on September 14, 1989, in Big Horn County, Wyoming. The marriage produced three children. The oldest child is no longer a minor, the second child turned eighteen on June 6, 2010, and their third child is deceased. Mother moved to Montana on September 23, 1993. While living in Montana, she filed for divorce on December 15, 1993. Appellant was personally served with the divorce complaint on December 21, 1993, in Wyoming. He did not answer the complaint and default was entered by the Montana district court. The Montana district court issued a divorce decree on March 1, 1994, dissolving the marriage. The decree required Appellant to pay child support in the amount of $216.00 per month. Mother was awarded custody of the children and Appellant was granted supervised visitation.

[¶4] In the course of the next several years, Mother and the children returned to Wyoming and Appellant moved to Minnesota. On February 10, 2005, Mother, through the Wyoming Department of Family Services (DFS), registered the Montana divorce decree in Minnesota for the purpose of enforcing the child support provisions of the decree. On February 25, 2005, Appellant requested a hearing in Minnesota to contest the validity and enforcement of the Montana decree. On June 13, 2005, the district court in Minnesota held a hearing and issued a written order denying Appellant's motion. Ten months later, Appellant again requested a hearing on the validity of the Montana divorce decree. The Minnesota district court denied Appellant's request. Appellant did not appeal either order.

[¶5] On March 3, 2009, Appellant initiated this action, in the Fourth Judicial District of Wyoming, again challenging the validity of the Montana decree. The petition included three motions: a motion for vacation of invalid court order; a motion for collateral impeachment of invalid court order; and a motion for injunction of the use of invalid court order. The named respondents in the petition were Mother and the Wyoming Department of Family Services.

[¶6] The district court held a hearing on all motions July 22, 2009. The hearing was not reported. Appellant prepared a statement of evidence pursuant to W.R.A.P. 3.03 and an Order Approving Statement of Evidence as Modified by the Court was entered. The statement of evidence reflects that Appellant read a prepared opening statement. In response to a question from the district court, Appellant confirmed that the issue was "whether Montana had the jurisdiction to render the decree." Appellant contended the decree was invalid because Mother had not been a resident of Montana for the requisite number of days required by Montana statute. Mother was placed under oath and testified that she signed her affidavit for the Montana divorce on December 15, 1993. Appellant declined to ask Mother any questions. DFS did not present any other evidence. Appellant did not testify and advised the court that "all of his evidence was included in the pleadings." The district court issued a written order denying Appellant's petition on August 28, 2009. Appellant timely appealed.

DISCUSSION

[¶7] In his petition, Appellant attached documents regarding attempted enforcement of the Montana decree, in the state of Minnesota. Those documents establish that the Montana decree was filed with the District Court, Seventh Judicial District in Stearns County, Minnesota pursuant to the Minnesota Enforcement of Support Act. Appellant was provided with notice of that filing and advised that he could contest the validity of the underlying order, but that, if he failed to do so, the order "will be confirmed and will preclude you from further contesting the order(s) with respect to any matter that could have been asserted at the time of registration." Appellant responded by filing a request "to contest the validity" of the Foreign Order of Support.*fn3 A hearing on Appellant's challenge of the Montana decree was held on June 13, 2005. Appellant was present at that hearing. Following the hearing, the Minnesota district court entered an order denying Appellant's motion. The Order states: "[Appellant's] motion contesting the validity and enforcement of the registration of the Foreign Order of Support is DENIED."

[ΒΆ8] On April 28, 2006, Appellant filed another request in Minnesota for a hearing stating that he wished to "request a hearing to contest the validity of [a] Foreign Order of Support." A hearing was held on July 6, 2006. Appellant was present at that hearing. At the conclusion of the hearing, the Minnesota district court entered ...


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