Cook v. Cook

• Decision Date: 15 November 1966
• Docket Number: No. 52181,52181
• Parties: Leon W. COOK, Appellee, v. Mary C. COOK, Appellant.
• Court: Iowa Supreme Court

Page 273

146 N.W.2d 273

259 Iowa 825

Leon W. COOK, Appellee, v. Mary C. COOK, Appellant.

No. 52181.

Supreme Court of Iowa.

Nov. 15, 1966.

Grate, Moore, Warren & Potter, Des Moines, for appellant.

Gilbert & Stoddard, Oskaloosa, for appellee.

MASON, Justice.

This is an action brought under rules 252 and 253, Rules of Civil Procedure, by defendant-former wife, Mary C. Cook, to vacate a decree granting divorce to plaintiff, Leon W. Cook. The action, tried as an ordinary one, was dismissed by the trial court. Defendant appeals.

March 20, 1964, plaintiff filed his petition seeking a divorce on the grounds of cruel treatment such as to endanger life. Section 598.8(5), Code, 1966. Defendant accepted service of original notice that date. March 23 an appearance was filed by an attorney on behalf of defendant and plaintiff filed a motion supported by his affidavit, moving the court to waive the waiting period in the case provided by section 598.25. That day a decree was entered granting plaintiff's motion, granting him a divorce by default on the grounds alleged, custody of two minor children of the parties and approving a stipulation between the parties, submitted to the court but not filed with the decree.

I. Defendant originally filed her petition to vacate judgment in November. January 12, 1965, an amended and substituted answer and petition were filed, division one being defendant's answer to plaintiff's petition for divorce and division two being her petition to vacate the judgment entered March 23, 1964.

The former wife alleged irregularity, fraud and coercion practiced in obtaining the decree. She claims the court was without jurisdiction to grant a decree three days after the petition was filed.

Plaintiff's answer denied generally the allegations in the petition to vacate and trial was had thereon.

The court found no irregularity in the divorce proceedings and no fraud, collaterial, extrinsic or otherwise, practiced upon either the court or defendant-wife.

II. Defendant assigns as errors relied on for reversal: (1) Lack of jurisdiction to grant a divorce three days after filing petition, (2) failure to admit evidence of intrinsic fraud in conjunction with evidence of extrinsic fraud, (3) failure to vacate decree due to irregularity, (4) forbidding deposition of Janine Odette Dudley, (5) failure to vacate due to fraud, and (6) error in excluding evidence offered by defendant.

Questions presented by the appeal are: (1) Did defendant make a case of irregularity or fraud? Claimed error (2) in suppressing the taking of a deposition; (3) in ruling on objections to evidence; and (4) in sustaining plaintiff's motion to shorten the 60-day waiting period.

III. Rule 252, R.C.P., states:

'Upon timely petition and notice under rule 253 the court may correct, vacate or modify a final judgment or order, or grant a new trial on any of the following grounds:

'* * * (b) Irregularity or fraud practiced in obtaining the same * * *.'

A petition for vacation of judgment is tried as an ordinary action to the court and is not triable de novo on appeal. Jacobson v. Leap, 249 Iowa 1036, 1041, 88 N.W.2d 919, 922; Svoboda v. Svoboda, 245 Iowa 111, 122, 60 N.W.2d 859, 865.

If there is conflicting evidence, or if different inferences may reasonably be drawn from the facts shown, the trial court's findings have the effect of a jury verdict. The trial court in passing upon such petition has a considerable discretion, not final or conclusive but requiring some support in the record. Windus v. Great Plains Gas, 255 Iowa 587, 593--594, 122 N.W.2d 901, 905. A stronger showing is required upon an application to vacate than to set aside a default under rule 236. Windus v. Great Plains Gas, supra, 255 Iowa, at 594--596, 122 N.W.2d, at 905--906.

The only issue tried by the court was whether there was fraud sufficient to justify the setting aside of the decree. Both parties agreed the divorce action was not being tried again.

IV. In arguing her first assignment of error, lack of jurisdiction to grant a divorce, defendant contends the facts in plaintiff's supporting affidavit attached to his motion to waive the waiting period provided by Code section 598.25 were insufficient to warrant immediate action. In the affidavit plaintiff stated the cause should be tried and determined at once because of the best interests of the children.

In the decree the trial court found the grounds stated in the affidavit satisfied the court immediate action was warranted to protect the substantive rights and interests of the parties affected by the decree and the facts to support such finding need not be recited in the decree.

Section 598.25 provides:

'Waiting period before decree. * * * the court may in its discretion, on writing motion supported by affidavit setting forth grounds of emergency or necessity and facts which satisfy the court that immediate action is warranted or required to protect the substantive rights or interests of any party or person who might be affected by the decree, hold a hearing and grant a decree of divorce prior to the expiration of the sixty-day period, provided that requirements of notice have been complied with. In such case the grounds of emergency or necessity and the facts with respect thereto shall be recited in the decree unless otherwise ordered by the court.'

Although some more detail could have been included in plaintiff's affidavit, there were sufficient facts and grounds to satisfy the court and it exercised the discretion given by the statute to hold the hearing and waive the time. The discretion was not abused.

This assignment cannot be sustained.

V. Defendant's second assignment contends evidence of intrinsic fraud is admissible in action to vacate decree. We do not agree.

'The time-honored rule is that the fraud must be extrinsic or collateral to the matter first tried, and not fraud in a matter on which the judgment was rendered. * * * 'Extrinsic or collateral fraud * * * may consist of acts or promises lulling the defrauded party into false security, or preventing him from making defense, and many other acts (Citation). '' Scheel v. Superior Manufacturing Co., 249 Iowa 873, 882, 89 N.W.2d 377, 382--384, where the authorities are analyzed. See also Sorenson v. Sorenson, 254 Iowa 817, 825, 119 N.W.2d 129, 134.

'Extrinsic, as distinguished from intrinsic fraud, pertains not to the judgment itself, but to the manner in which it is procured.' Oregon-Washington R. & Nav. Co. v. Reid, 155 Or. 602, 65 P.2d 664, 667, and citations. 'Fraud is classified as intrinsic or extrinsic. Included in the term 'intrinsic fraud' are false testimony, fraudulent instruments, and any fraudulent matter that was presented and considered in rendering judgment.' Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 97, and citations.

'Extrinsic fraud' is some act or conduct of prevailing party which has prevented a fair submission of the controversy, while 'intrinsic fraud' relates to questions that were in conflict and not necessary for the court to determine. Putnam v. Putnam, 126 Kan. 479, 268 P. 797, 799.

VI. 'The charge of fraud necessarily carries with it the burden on the party making it to sustain the same by sufficient evidence to satisfy the court that such fraud has been perpetrated. The presumption in the first instance is that honesty prevails in all of these matters, and when fraud is charged it casts the burden on the party asserting it to prove the same.' Girdey v. Girdey, 213 Iowa 1, 4, 238 N.W. 432, 434, cited in Svoboda v. Svoboda, supra, 245 Iowa, at 119, 60 N.W.2d, at 864.

Plaintiff and defendant were married June 14, 1940 and lived together as husband and wife until February 23, 1964. They are the parents of two daughters, 16 and 20. They had resided in Montezuma, where the husband had been a practicing veterinarian, since 1940. Prior to the commencement of the divorce proceedings the wife worked at the business of the parties known as 'The Party House'.

Defendant had been admitted to the psychiatric ward in Mercy Hospital at Marshalltown February 24, 1964. While there she was given tranquilizers four times a day and when released March 17 tranquilizer medication was prescribed for her future use. While in the hospital she wrote an attorney in Montezuma asking for an appointment.

Upon the defendant's discharge from the hospital, plaintiff accompanied by the wife's sister-in-law transported the wife from the hospital to Des Moines for lunch. Plaintiff bought his wife 'the best Singer sewing machine', returned to Montezuma where he and defendant went to the office of the attorney whom the wife had written from the hospital. The parties returned to this office March 20. The petition, stipulation, motion to waive time, a proposed decree, an original notice with acceptance of service and an attorney's appearance for defendant had been prepared.

The trial court specifically found 'that by no act or conduct was the court either misled or imposed upon in the divorce proceedings and that no fraud was practiced on the court's and concluded there was not fraud, collateral, extrinsic or otherwise, practiced upon the court. We find no basis for disturbing this conclusion.

VII. Our consideration of defendant's third and fifth assigned errors is thus limited to an inquiry whether defendant was deceived and fraud was committed against her.

To meet her burden defendant offered witnesses who were employed at the Party House or other acquaintances of both parties, plus her brother and sister-in-law.

The employees told of their acquaintances with both parties and their observations of defendant within a short time prior to her admission to the Marshalltown hospital February 24, describing her as nervous, upset, tired and with a tendency to cry.

The acquaintances similarly described defendant as nervous, upset and in a dazed condition before entering the hospital, while a patient and after discharge. One...