F. v. F.

• Decision Date: 15 March 1960
• Docket Number: No. 30361,30361
• Citation: 333 S.W.2d 320
• Parties: L_____ C. F_____ (Plaintiff), Appellant, v. D_____ H. F_____ (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 320

333 S.W.2d 320

L_____ C. F_____ (Plaintiff), Appellant, v. D_____ H. F_____ (Defendant), Respondent.

No. 30361.

St. Louis Court of Appeals, Missouri.

March 15, 1960.

Motion for Rehearing or to Transfer to Supreme Court Denied

April 12, 1960.

David K. Breed and Albert E. Hausman, St. Louis, for plaintiff-appellant.

Champ Stonebraker, St. Luis, for defendant-respondent.

DOERNER, Commissioner.

Plaintiff and defendant were formerly husband and wife, the bonds of matrimony between them having been dissolved by a decree of divorce of the Circuit Court of the City of St. Louis on October 7, 1953. This is an equitable action in which plaintiff, by direct attack, seeks to have a part of that decree of divorce set aside on the alleged ground of fraud. What the plaintiff sought, according to his petition, was to have declared null and void that part of the divorce decree requiring him to support a child born during the existence of the marriage, on the grounds that the child was not his. The chancellor entered a general judgment in favor of defendant and plaintiff appealed.

The evidence of both parties showed that they were married on July 7, 1946, at Scott Air Force Base, near Belleville, Illinois, where plaintiff, a career airman, was stationed, and that they separated after three days and did not again live together until May 25, 1952. Plaintiff's theory of his case was that about May 1, 1952, the defendant, knowing herself to be pregnant by another man, and intending to practice a fraud upon the plaintiff, induced the plaintiff to live with her by stating that she desired a reconciliation; that she visited him at Springfield, Massachusetts, where he was stationed, and cohabitated with him from May 25, 1952, to about May 31 or June 1, 1952; that they again lived together for a couple of days in July, 1952, at the Lake of the Ozarks; that a child was born to defendant on January 9, 1953, and was a full term child; that defendant did not inform plaintiff of the birth of the child until she wrote him a letter on March 30, 1953, advising him she had given birth to a baby girl, but that she did not tell him the date on which the birth had occurred; that '* * * defendant thereafter wrote plaintiff that she intended to file suit for divorce and that she would not live with plaintiff as his wife in the future, and plaintiff believing that the child was born of the aforesaid marriage, entered his appearance to a divorce proceeding later filed by defendant against his plaintiff * * *'; that in defendant's petition for divorce she alleged that plaintiff and defendant had lived together until May 8, 1952, and that that statement was false; that the petition for divorce was dated June 22, 1953, and that defendant also alleged therein that "there was one child born of the marriage, R_____ C_____, age four months',' when in truth the child was then 6 1/2 months old; that the decree of divorce was granted to defendant on October 7, 1953, by which defendant was awarded the custody of the child, and an allowance for its support.

Defendant's position below was that it was the plaintiff who first wrote to her, early in 1952, and that subsequently they mutually agreed to effect a reconciliation; that she thereupon visited and lived with plaintiff for about six days, starting on May 25, 1952, at Springfield, Massachusetts; that when she left St. Louis at that time she was not pregnant, and was just completing her menstrual period; that she did not menstruate again after the cohabitation in Springfield, Massachusetts; that in anticipation of living together permanently she gave up her job at the Postal Credit Union in June, 1952; that she and the defendant were again together at the Lake of the Ozarks in July, 1952, and at that time she informed plaintiff that she was pregnant; that plaintiff again visited her in St. Louis in November, 1952, at which time she was noticeably pregnant; that the child was not expected until February, 1953, but came early; that she informed plaintiff of the birth of the child before her letter of March 30, 1953; that she consulted her attorney regarding a divorce and the petition therefor was prepared at a time when the child was then four months old, but that a delay occurred, and the petition was not signed until later; and that she did not at that time notice the allegation regarding the age of the child.

This is not the usual action in equity in which relief is sought for a fraud allegedly perpetrated by the defendant. Nor was it in the nature of an action for a declaratory judgment respecting the paternity of the child. Admittedly the decree of divorce had been rendered by a court of competent jurisdiction. Of necessity, then, this was a direct attack upon that decree. However, if the nature of this action was ever considered by the parties in the trial court in was apparently lost sight of in the process of appeal, for in neither of the briefs is there any reference to the rules of law which govern a suit to vacate a judgment on the ground that it was procured by fraud. Furthermore, in view of the allegation in plaintiff's petition that he had remarried, his solicitude as to that part of the decree dissolving his marriage with defendant is understandable; but he does not attempt to explain by what legal legerdemain he expects this court, or any court, to set aside a part of a decree of divorce on the grounds that the defendant was an adulteress, and not set aside that part which found defendant to be the innocent and injured party and entitled to the decree ending their marriage.

It is true that a court of equity will vitiate a decree of divorce rendered by a court of competent jurisdiction if that decree was procured by fraud. Hemphill v. Hemphill, Mo., 316 S.W.2d 582; McCarty v. McCarty, Mo., 300 S.W.2d 394; Coleman v. Coleman, Mo.App., 277 S.W.2d 866. But there is a sharp distinction as to the nature of the fraud which must be shown before a court of equity may cancel a decree of divorce. The fraud must relate, not to the merits of the action, that is, whether or not the prevailing party was entitled to the decree of divorce, but rather to some matter by which the prevailing party secured the decree. As was said in the oft-quoted passage in Jones v. Jones, Mo.App., 254 S.W.2d 260, 261:

'* * * But for the fraud to have existed in the procurement of the judgment, it must have related, not to the propriety of the judgment itself, but to the manner in which the judgment was obtained. In other words, the fraud must have been extrinsic or collateral to the matters which either were or could have been presented and adjudicated in the original proceeding, and not merely intrinsic in the sense of having pertained to the merits of the cause upon which the judgment of the court was rendered. In short, it is not the province of this feature of equitable jurisdiction to afford the losing party a retrial of matters either tried or concluded by the original proceeding, but instead relief is limited to those instances where the fraud was of such a character as to have forestalled an opportunity for the fair submission of the controversy. * * *'

Hemphill v. Hemphill, supra; McCarty v. McCarty, supra.

A careful study and review of both plaintiff's petition and evidence discloses that the only claims made by him which might possibly be contended to be of extrinsic or collateral fraud by defendant in the procurement of the decree of divorce were:

(1) That the allegation in defendant's petition for divorce that the parties had lived together until May 8, 1952, was false, because the parties had, in fact, been separated from 1946 to May 25, 1952.

(2) That defendant induced the plaintiff to sign an entry of appearance and answer in the divorce action, and to remain away from the trial of that case, by failing to inform the plaintiff of the true date on which the child had been born.

(3) That defendant's allegation in her petition for divorce, dated June 22, 1953, that "there was one child born of the marriage, R_____ C_____, age four months',' was not true, because he child at that time was 6 1/2 months old.

As pointed out in Hemphill v. Hemphill, supra, and McCarty v. McCarty, supra, false averments in the divorce petition, false statements in the affidavit thereto, and false testimony in support thereof are not sufficient to warrant the relief sought. Certainly the first and third of the foregoing claims of plaintiff relate only to allegedly false averments in defendant's petition for divorce, and hence were not extrinsic or collateral to the issues in that action. The second of plaintiff's claims is of a doubtful classification, but assuming, without deciding, that it may encompass fraud in the procurement of the decree, the weakness in plaintiff's position lies in his failure of proof.

Plaintiff's only evidence as to that issue was the introduction of the copy of defendant's petition for divorce, which was undated, except for the year '1953'; plaintiff's testimony that he had received it by mail from defendant's counsel while he was stationed in Virginia, together with an entry of appearance and answer, both of which he signed and returned; plaintiff's testimony that the first news he had of the birth of the child was defendant's letter to him, dated March 30, 1953, which was introduced in evidence; and the original of plaintiff's petition for divorce, which had been acknowledged before a notary public on June 22, 1953. Both the original and the copy of the petition contained the allegation that "there was one child born of the marriage, R_____ C_____, age four months'.'

Defendant's letter of March 30, 1953, is four pages long, too extensive to set forth herein verbatim. In the first part defendant acknowledges receipt of a letter from plaintiff, and stated that she had written plaintiff two letters but that they had been returned, and she did not know what address to use. Apparently...