Kane v. Kane

No. 81-409
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
KENNETH A. KANE,
Plaintiff and Appellant,
VS.
DONNA J. KANE,
Defendant and Respondent.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn
Honorable William J. Speare, Judge presiding.
Counsel of Record:
For Appellant:
Richter and Acker, Billings, Montana
Frank Richter argued, Billings, Montana
For Respondent :
Moses Law Firm, Billings, Montana
Charles F. Noses argued, Billings, Montana
Redle, Yonkee & Arney, Sheridan, Wyoming
Submitted: April 2, 1982
Mr. Chief Justice Frank I. Haswell delivered the Opinion
of the Court.
Plaintiff Kenneth Kane filed suit in the Thirteenth
Judicial District Court against Shell Oil Company and Donna
Kane, his former wife, seeking specific performance of an
agreement to purchase land, damages, attorney fees and
expenses related to sale of the land, and trustee's fees.
Subsequently a stipulation was entered into by the parties
and Shell Oil Company was dismissed from the suit. Motions
for summary judgment were then filed by both Kenneth and
Donna. The District Court denied the motions for summary
judgment and dismissed the case without prejudice based upon
its determination that the dispute might be more appropriately
and justly decided in the Wyoming District Court. Kenneth
appeals.
In 1977, Kenneth was granted a divorce from his wife
Donna by the Fourth Judicial District Court for the State of
Wyoming. The divorce decree as modified provided that
Kenneth was to convey to Donna an undivided one-half interest
in certain property located in Big Horn County, Montana.
The decree also provided that Kenneth was to act as trustee
of a trust imposed on the Montana property and that Donna
and Kenneth were both to execute any documents necessary to
convey the property to Shell Oil Company if Shell Oil Company
decided to exercise its option to purchase the property, an
option it had acquired in 1975. The divorce decree further
provided that in the event Donna and Kenneth disagreed
concerning any transaction arising out of the decree, the
matter was to be submitted to the Wyoming District Court for
determination.
Shell Oil Company decided to exercise its option.
However, at the closing Donna refused to execute the documents
needed to complete the transaction because a clerical error
had been made in the divorce decree and Donna contended that
if the error were not corrected she would not receive her
correct share of the proceeds from the sale of the land.
The Wyoming District Court later issued an order to correct
the clerical mistake.
Meanwhile Kenneth brought this action in the Thirteenth
Judicial District Court, Big Horn County, Montana, seeking
specific performance of the purchase agreement by Shell Oil
Company and a judgment against Donna for damages related to
her alleged interference with the closing, attorney fees and
expenses connected with the sale of the Montana land, and
trustee's fees. Donna and Shell Oil Company both cross-
claimed and counterclaimed.
In June 1980, a stipulation was entered into by the
parties and Shell Oil Company was dismissed from the lawsuit.
Both Kenneth and Donna then filed motions for summary
judgment. In Donna's brief on the summary judgment motions
she argued that as to one issue she was entitled to summary
judgment but as to the remaining issues the Montana ~istrict
Court lacked jurisdiction to decide the issues and that the
appropriate forum was the Wyoming District Court.
Both motions for summary judgment were denied and the
case was dismissed without prejudice. The Montana ~istrict
Court declined to exercise jurisdiction over any of the
issues in the case based upon its determination that the
case might be more appropriately and justly tried in the
Wyoming District Court since there no longer existed any
claim for specific performance and since the issues that
remained all arose out of the Wyoming divorce decree.
Kenneth appeals from the District Court's judgment.
The issue presented in this appeal is whether the
District Court erred in declining to accept jurisdiction of
this case.
Kenneth argues that the Montana District Court has
jurisdiction to hear this case and that the "open court
policy" set forth in the 1972 Montana Constitution, Art. 11,
§ 16, requires the Montana District Court to exercise that
jurisdiction. Donna contends that the Wyoming District
Court is the appropriate forum for this case because the
Wyoming District Court retained jurisdiction over disagreements
arising out of the divorce decree. She argues that the
provision in the divorce decree which states that such dis-
agreements are to be submitted to the Wyoming ~istrictCourt
for determination should be given full faith and credit
under the United States Constitution, Art. IV, § 1, or in
the alternative that the provision in the divorce decree
should be honored based on the doctrine of comity.
We note first that the Full Faith and Credit Clause of
the United States Constitution does not prohibit a state
from exercising jurisdiction in a transitory cause of action
even though a sister state has provided that action on the
particular claim shall not be brought outside its territory.
Tennessee Coal, I. & R. Co. v. George (1914), 233 U.S. 354,
34 S. Ct. 587, 58 L. Ed. 997; Restatement (Second) of Conflict
of Laws § 91 (1971).
Nevertheless, the District Court properly declined to
exercise jurisdiction in this case based on the doctrine of
comity.
"Comity is the basis for voluntary enforcement
or recognition by one state of the judicial
proceedings of a sister state. Mast Foos &
Co. v. Stoerer Mfg. Co., 177 U.S. 485, 488-489,
20 S. Ct. 708, 710, 44 L.Ed., 856 [ 1 (1900);
.
. . Comity is not a binding obligation on
the forum state, but a courtesy voluntarily
extended to another state for reasons of 'practice,
convenience and expediency.' Mast Foos & Co.,
supra, 177 U.S., at 488, 20 S. Ct. at 710; . . .
Deference is not offered, however, when it would
contravene the public or judicial policy of the
forum state. Thus, application of comity
involves an examination by the Court of both
the public policy of the forum state and the
impact on that policy of enforcing the foreign
proceeding." Philadelphia v. Austin (1981),
86 N.J. 55, 429 A.2d 568.
We determine that applying comity to this case does not
contravene the public policy of the State of Montana.
Montana does have an "open court policy." "Courts of justice
shall be open to every person, and speedy remedy afforded
for every injury of person, property, or character." 1972
Mont. Const., Art. 11, S 16. This policy would not be
thwarted by honoring the statement in the divorce decree
which provides that disagreements arising out of the divorce
decree are to be submitted to the Wyoming ~istrictCourt
for resolution. Donna and Kenneth are both residents of the
State of Wyoming and there is a forum available in that
state for the resolution of the issues raised by the parties
in this case.
Kenneth argues, however, that the issues remaining in
this case did not arise out of the Wyoming divorce decree.
We disagree. The claim that Donna acted incorrectly at the
closing is related to her obligations under the decree and
the issues of attorney fees, expenses and trustee's fees
are likewise all directly related to the provisions of the
divorce decree.
We agree with the District Court that this case may be
more appropriately and justly tried in the Wyoming District
Court. The District Court correctly declined to exercise
jurisdiction in the case, and we find no error in the
District Court's denial of the motions for summary judgment
since the case was dismissed without prejudice.
Af firmed.
Chief Justice
We Concur:
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