Arnold v. Arnold, 34635
| Decision Date | 28 October 1952 |
| Docket Number | No. 34635,34635 |
| Citation | 207 Okla. 352,249 P.2d 734 |
| Parties | ARNOLD v. ARNOLD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. After expiration of the term at which it was rendered a judgment valid on its face may not be set aside on grounds of fraud except in the manner set forth and within the time prescribed by statute. 12 O.S. 1951 §§ 1031(4), 1033, 1038.
2. A decree of divorce establishing the paternity of an unborn child conceived during wedlock, when such decree is not appealed nor properly attacked, constitutes a final determination of such issue and the question of paternity cannot be raised in a subsequent hearing on the matter of support.
3. A father is obligated both morally and legally to support his child.
Charles L. Baxter, Oklahoma City, for plaintiff in error.
Reynolds & Ridings, Oklahoma City, and Susman & Landy, Denver, Colo., for defendant in error.
The initial divorce action between the parties was filed by appellee on June 8, 1946. The petition alleged that 'no children have been born but at the time the plaintiff is pregnant.' On June 25, 1946, appellant, who was the defendant in the court below, filed an entry of appearance and waiver properly notarized, in which he stated 'he has read and understands the same (petition).' On the same date, June 25, 1946, judgment granting a divorce was entered with the journal entry, approved by the attorney of record for both parties. The court made a specific finding as follows:
'The court further finds that plaintiff is now pregnant with child by the defendant and the court hereby reserves jurisdiction of the expense of delivery, care and custody of said child.'
No motion for new trial was filed and no appeal was taken.
On November 24, 1948, the appellee filed a supplemental petition seeking support for Charles Lee Hankins, Jr., the child referred to at the time the decree was entered. An ex parte order was issued setting support at $50 per month. Thereafter, upon motion by appellant to vacate the order, a full hearing was had. On the 16th day of September, 1949, the trial court entered its order fixing child support at $50 per month, ordering the payment of back installments from the date of the supplemental petition, and granting an attorney's fee to appellee's attorney. Appellant seeks reversal of the latter order.
The sole ground upon which appellant relies for reversal is that the appellant is not the father of the child concerned.
Appellant's brief contains some suggestions of fraud on the court. However, the Oklahoma Statutes specifically provide the procedure to be followed in setting aside a judgment for fraud. 12 O.S. 1951 §§ 1031(4), 1033. This procedure has not been instituted or followed in this case.
Proceedings to vacate a judgment for fraud must be commenced within two years after the judgment was rendered or the order made. 12 O.S. 1951 § 1038. In this instance no attack was made until after appellee filed her motion for child support on November 24, 1948. The limitations period had expired and the judgment must stand.
Nor can it be said that the statute was tolled by the fraud since the original divorce petition referred to the pregnancy and the decree, approved by the attorney then representing the appellant, specifically found that appellee was pregnant by the appellant. Appellant also testified at the 1949 hearing that he was aware of appellee's claim regarding the paternity of the child prior to the granting of the divorce, and...
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