Daffin v. Daffin, s. KCD

Decision Date01 May 1978
Docket NumberNos. KCD,s. KCD
Citation567 S.W.2d 672
PartiesCharles A. DAFFIN, Appellant, v. Frances Louise DAFFIN, Respondent. 29223, KCD 29279.
CourtMissouri Court of Appeals

William C. Partin, Kansas City, for appellant.

Joseph R. Borich, James R. Derting, Collet & Borich, Kansas City, for respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SHANGLER, Presiding Judge.

These appeals come from an order to set aside the property provisions of a dissolution of marriage decree for fraud on the court of rendition in the procurement of the judgment. The husband appeals on the ground that the prior decree entered was on an agreed property settlement not unconscionable in terms and therefore beyond the power of a court of equity to affect. The wife appeals on the ground that the subsequent order was not just as a division of the marital property nor as allowances for maintenance and attorney fee.

The decree of dissolution found fraudulent was entered on a petition of the husband and the entry of appearance of the wife on waiver of personal service and consent to trial and judgment without further notice. The wife was without the advice of counsel throughout these proceedings. The separation agreement of the parties, drafted by counsel for the husband, was presented to the court for approval. The agreement undertook to apportion the personal property of the parties, provided for joint ownership as tenants in common of the townhouse after dissolution but for the use of the wife and minor son until the child left the home, acceded to the fitness of the wife for the custody of the son, and provided for support money of $40 per week on the basis of a net $217 weekly salary. The agreement made no mention of a military pension of $500.59 he received every month. The court found the settlement agreement was not unconscionable and that the interests of the parties in the marital property were determined by its terms and entered judgment accordingly. The wife let the proceedings and judgment go without contest.

After the lapse of some months, the wife brought a direct action to set aside the decree, except as to the dissolution of the marriage, on grounds that the judgment, separation agreement and waivers of appearance and contest were procured by fraud practiced upon her and upon the court. The wife contended that her actions were overborned by the husband who dominated her to such extent that she was forced to rely on his advice to waive her rights of contest and to have the court divide the marital property. She contended also that the nondisclosure of the military pension in the separation agreement was a fraudulent concealment from the court of a valuable marital asset and so was not adjudicated by the decree.

The evidence was that the marriage continued for twenty-four years. They married when he was nineteen and she only fourteen; she represented herself to be sixteen at his suggestion to avoid objection. He had just enlisted in the Marine Corps where he continued service until retirement nineteen years later. Two children were born to them and at the time of dissolution the daughter was of full age and the boy, eighteen, remained at home. The wife accepted whatever employment was available during the marriage and contributed throughout to the common financial needs. The husband tended to the financial affairs almost exclusively and dominated their activities. After twenty-four years of marriage, the husband met a younger woman, his present spouse, and began to urge a dissolution of the marriage but the wife resisted. He persisted and she became distraught and developed symptoms of illness. She began under the consultation and care of a physician. He found her in stress from the marital situation passive and compliant. She was in this state when the husband announced he had commenced the dissolution action. It was the opinion of the physician that she could not have effectively negotiated a settlement agreement or made any other judgment as to marital rights.

The husband filed petition for dissolution of the marriage on December 18, 1974. The next day he took her to the office of his counsel to sign papers. There she was presented the separation agreement for the first time and was asked by counsel to read and sign the document. She had not discussed the terms with her husband; he had assured her she need have no worry because what was done was for her benefit. He had told her also that the lawyer represented both of them and would look after her interests and expected her to rely on that assertion as "(s)he had relied on everything else (he) said for twenty years". At the office, counsel expressly requested that she read the document before she gave her signature. She was very upset and tearful, however, and so only feigned examination of the agreement and signed it without understanding. (The entry of appearance and waiver appear to have been executed also at that time.)

The separation agreement identified the marital property to include the townhouse, furniture, household goods, automobiles and bank account, to the total value of about $12,000. The agreement made no reference to the $500 monthly military pension which then had an actuarial value of $64,491.

While the petition pended, the husband suggested a reconciliation, so he returned to the home and they resumed intimacy. Two days later he moved out again in anger. The wife assumed that because of resumption of the marital relation the dissolution hearing would be rescheduled on further notice, but the cause was heard about two weeks later without her knowledge or presence.

The husband appeared in person at the dissolution hearing and gave evidence to prove the cause of action but made no mention of the military pension he received regularly. In response to examination by his counsel the husband testified:

Q. Now, Mr. Daffin, in relationship to this separation agreement, you have made disposition of all your marital and non-marital property, is that correct?

A. Yes.

On this evidence the court found the marriage irretrievably broken and ordered dissolution. The custody of son Michael and $40 per week for his support was awarded the wife. The court further found the separation agreement set apart to the parties the property of each and was not unconscionable and, as such, was "determinative of all property interest owned or claimed by both parties hereto." No maintenance was awarded.

The action to set aside the uncontested judgment for fraud on the court in the procurement followed some months later. The court vacated the judgment (except as to dissolution of the marriage) and, as amended, divided the marital property (except for the military pension) substantially as delineated by the separation agreement, declared son Michael an emancipated person, ordered the parties to sell the townhouse and share the proceeds at such time as the son should remove from residence, adjudged the military pension a marital asset and ordered the husband to pay the wife $175 per month (to commence thirty days after sale of the townhouse and to terminate upon the death of either party or remarriage of the wife) from that retirement benefit both as a division of marital property and as maintenance.

These orders rest on the determination that a husband who procures a judgment on the basis of a separation agreement presented to the court for approval as not unconscionable and who at the same time withholds from the court knowledge of the single largest marital asset (the military pension) commits a species of fraud.

The husband contends here that the court had neither legal nor equitable cause to vacate the original judgment which found the separation agreement not unconscionable and adjudged the disposition of the property according to its terms. The husband means by these contentions that the prior judgment entered some months before, and from which no appeal was taken, had since become final and was conclusive. Rule 75.01. The husband means also that, whether the proceeding to vacate that judgment was intended as a writ of error coram nobis or as an action in equity for fraud in the procurement as alternatively proposed by the wife the evidence was not sufficient to support the remedy awarded.

The common law allowed remedy to challenge the validity of a judgment already rendered by means which included the writ of error coram nobis and a proceeding in equity to vacate the judgment for fraud in the procurement. The remedy used was determined by whether the challenge to the judgment invoked the law or equity jurisdiction of the court. Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 881 (Banc 1922); J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, 191 (Mo.App.1961). The remedy by writ of error coram nobis engaged the law jurisdiction of a court to correct an error of fact upon which the judgment rested. The writ brought its own judgment before the court of rendition for examination of a matter of fact (but not of law) wrongly assumed in the adjudication and which, if known, would have prevented jurisdiction to enter the judgment. Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 676 (1908). The remedy to vacate a judgment for fraud in the procurement engaged the equity jurisdiction of the court. The fraud which justified such relief, however, was a deception which prevented the presentation of a defense or proof, and because extraneous to the judgment, the practice at the common law required that such a proceeding be brought in equity by separate bill. In re Beauchamp's Estate, 184 S.W.2d 729 (Mo.App.1945).

The coalescence of the two traditional forms of action, law and equity, into the single form, the civil action, prompted a rule of law of apparent logic which used coram nobis by direct motion to the court of rendition as a means for the equity power to vacate the judgment...

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  • Deering v. Deering
    • United States
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    ...declined to so classify a non-vested retirement annuity. E.g., Miller v. Miller, 83 Mich.App. 672, 269 N.W.2d 264 (1978); Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978). It is on this basis, also, that some courts which recognize spousal rights in accumulated retirement benefits upon termin......
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