Board of Trustees of Firemen's Relief & Pension Fund of City of Holdenville v. Cotton
| Decision Date | 07 April 1953 |
| Docket Number | No. 35489,35489 |
| Parties | BOARD OF TRUSTEES OF FIREMEN'S RELIEF & PENSION FUND OF CITY OF HOLDENVILLE v. COTTON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. While, ordinarily, mandamus will not lie to control or compel performance of a duty requiring exercise of discretion, writ may be issued to correct abuse of discretion or to compel action where action taken or the refusal to act is erroneous and arbitrary.
2. A decree of divorce procured by means of fraud and imposition practiced upon the trial court by the prevailing party may be set aside after the death of such party where property rights are involved.
Turner & Turner, Holdenville, for plaintiff in error.
Wells & Wells, Seminole, for defendant in error.
Plaintiff and R. L. Cotton were married in 1907. In 1910 they established their home in Holdenville, Oklahoma, where R. L. Cotton served more than 20 years as a member of the city fire department. Upon retirement in May, 1942, his years of service entitled him to a pension of $87.50 per month, which amount he continued to draw until his death in December, 1949.
September 13, 1951, plaintiff sought a writ of mandamus requiring defendant to pay her, as surviving widow, there being no minor children, the sum of $58.33 per month from and after December 1, 1949. The petition alleged the facts of R. L. Cotton's pensioned retirement, death and her surviving widowhood; that defendant was the custodian of funds belonging to those entitled to receive same; following her husband's death she made claim to defendant for this pension which was refused; the filing of a further claim therefor (July 31, 1951) which defendant rejected and refused to pay to her as the surviving widow as required by applicable laws of this state.
September 20, 1951, the trial court entered an alternative writ of mandamus directing defendant to pay plaintiff all amounts due and to continue monthly payments in the amount claimed, or to appear and show cause for defendant's refusal to comply with such writ.
September 27, 1951, defendant filed answer admitting deceased's retirement and payment of pension until time of his death and that if plaintiff was the surviving widow that she would be entitled to receive 66 2/3% of deceased's pension. In defense defendant plead that for plaintiff to be eligible to receive such pension it was required that she and deceased had lived together as man and wife continuously for the five year period immediately preceding R. L. Cotton's retirement; that on October 10, 1940, R. L. Cotton secured a decree of divorce from plaintiff in Hughes County, Oklahoma, and under applicable statutes this made her ineligible to receive any portion of such pension. Further, that plaintiff had presented a claim therefor which was rejected after due consideration by the Board on January 2, 1950; having failed to exercise her statutory right of appeal from the Board's action same became final, and not having availed herself of an adequate remedy provided by law, mandamus would not lie.
At the trial the records of the 1940 divorce proceedings were introduced, as was the testimony of the attorney who represented R. L. Cotton in such proceeding. A divorce was granted R. L. Cotton upon the ground of extreme cruelty, following the wife's (plaintiff's) entry of appearance and waiver of service of summons. Hearing upon plaintiff's action for mandamus further developed that in May, 1951, she filed petition to vacate the divorce upon the grounds same had been procured through fraud and misrepresentation practiced upon the trial court. By amendment the Board was made a party defendant to such petition, for the reason the money due from deceased's pension constituted a part of the property rights involved in the property settlement entered into between the parties, and approved by the trial court, upon granting of the decree of divorce. Defendant did not appear at the hearing on the petition to vacate the divorce decree. The trial court found that false allegations and recitations in such proceeding constituted fraud upon the trial court and the defendant (plaintiff herein); having been procured fraudulently such decree was void and an order was entered (July 30, 1951) setting same aside.
Upon trial of the present case defendant's motion to dismiss the action for mandamus was overruled, as was the motion to set aside the judgment vacating the divorce decree.
The evidence established the parties' marriage in 1907, and that they made their home in Holdenville from 1919 until deceased's retirement in 1942, and that they lived together as husband and wife during this period. In 1940 deceased had secured the above mentioned divorce. However, plaintiff testified that deceased returned home the day after the divorce was granted; the following day, they took a short trip together outside the state, and at all times thereafter lived as husband and wife. There was further testimony by witnesses who lived as neighbors to plaintiff and her husband, or who had occasion to visit in their home with some regularity. These witnesses testified that they knew nothing of the divorce in 1940, and that deceased was at the home and the parties lived together at all times as man and wife, and nothing of a contrary nature ever was apparent to those who knew plaintiff and her husband. Following deceased's retirement in 1942 the parties moved from Holdenville to Henryetta, Oklahoma, where they purchased a home which they occupied until 1949. There was considerable evidence of marital discord during the period they resided in Henryetta.
Respecting plaintiff's making claim for the pension, it appears that after the husband's death plaintiff verbally requested the mayor to investigate and see if the council would agree to allow payment thereof. Nothing came of this and plaintiff later directed inquiry to the city clerk (John Kirk), and also secretary of the pension board, and in this manner learned that the board did not intend to allow her claim.
The trial court found that plaintiff's pension claim was arbitrarily denied by the board without a claim having been filed, and without any transcript or record of any evidence being taken, and without notice to plaintiff that the board was to meet; that although the minutes of the board reflected unanimous rejection of her claim, such action was not binding upon plaintiff. The court further found that plaintiff filed claim for pension with the clerk of the pension board for all sums due and to become due, but the clerk refused to file such claim and have the board pass thereon, and failed to notify plaintiff that her claim was being ignored. It is sufficient to point out that such findings are entirely sustained by the evidence.
The trial court further found plaintiff and deceased were living together as husband and wife at the time of deceased's retirement, and had been living together continuously for more than 5 years immediately preceding his retirement, and not having remarried, plaintiff was and remained his widow. Based upon such findings the court entered a peremptory writ of mandamus requiring defendants to pay plaintiff $58.33 per month for every month since deceased's death, such payment to continue so long as plaintiff remained the unmarried widow of R. L. Cotton.
In seeking to reverse the judgment entered defendant presents an extended argument based upon three propositions. The gist of such argument is to the effect that the trial court attempted to accomplish by mandamus a result not otherwise possible, and therefore was without jurisdiction of the subject matter; that being a quasi-judicial body the board had the right to exercise its judicial discretion in determining plaintiff's eligibility for a pension and such determination was final except for being subject to review by the district court on appeal in the manner provided by statute; plaintiff failed to establish that she came within the statutory provisions entitling her to a widow's pension.
We are of the opinion that this appeal involves consideration of only two questions, which sufficiently dispose of the contentions urged on appeal. Naturally the paramount question relates to the jurisdiction of the trial court to grant a writ of mandamus. It is urged by defendant that it is a quasi-judicial body, created by statute, 11 O.S.1951 § 361 et seq., and vested with discretionary powers. And that mandamus will not lie to control such judicial discretion or issue where there is an adequate remedy at law. 12 O.S.1951 §§ 1451-1452. The argument is that plaintiff was bound by the statutes regarding presentment of her claim and appeal from the board's decision to the extent that her failure to proceed according to statute prevented the district court from having jurisdiction in mandamus, although the board itself was not bound to the extent that it was necessary to notify plaintiff her oral claim was to be heard, to take evidence of...
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