Fincher v. Fincher, 40859

• Decision Date: 12 April 1958
• Docket Number: No. 40859,40859
• Parties: Doris Jean FINCHER, Appellee, v. Harry Thomas FINCHER, Appellant.
• Court: Kansas Supreme Court

Page 159

324 P.2d 159

182 Kan. 724

Doris Jean FINCHER, Appellee, v. Harry Thomas FINCHER, Appellant.

No. 40859.

Supreme Court of Kansas.

April 12, 1958.

Syllabus by the Court

1. In an action brought under the provisions of G.S.1949, 60-3007, Fourth, to vacate or modify a judgment on the ground of fraud, the fraud relied on must be extrinsic fraud as distinguished from intrinsic fraud.

2. Following Mathey v. Mathey, 179 Kan. 284, 294 P.2d 202, it is held that, generally speaking, by the term extrinsic fraud is meant some act or conduct of the prevailing part which prevents a fair presentation of a controversy, that is, an act which is collateral to a fair determination of an issue before the court; and that, generally speaking, by the term intrinsic fraud is meant some act or conduct of the prevailing party which prevents a fair determination of an issue once the court has a controversy before it, that is, an act which is inherent and included in the determination of an issue.

3. Generally speaking, the giving of false testimony, that is, perjury, standing alone and unaccompanied by other acts or conduct of an extrinsic or collateral nature, is held to constitute intrinsic fraud and ordinarily affords no ground for equitable relief against a judgment.

4. Jurisdiction is defined as the power of a court to hear and decide a matter. The test of jurisdiction is not a correct decision, but a right to enter upon inquiry and make a decision, and jurisdiction is not limited to the power to decide a case rightly, but includes the power to decide it wrongly.

5. In an action brought under the authority of G.S.1949, 60-3007, Fourth, by a divorced husband against his former wife to vacate and set aside the decree of divorce on the ground of fraud, the record is examined and considered and it is held: Under the facts and circumstances, and for the reasons fully set forth in the opinion, the alleged fraud, if any, was intrinsic fraud, and the petition to vacate and set aside the decree of divorce was properly denied.

Elmer Hoge, Overland Park, argued the cause, and C. H. Boone, Leavenworth, was with him on the briefs for the appellant.

Walter I. Biddle, Leavenworth, argued the cause and was on the briefs for the appellee.

PRICE, Justice:

A wife sued for divorce. Personal service of summons was had. She obtained a default decree. The husband later filed a petition to vacate and set aside the decree on the ground it was obtained by fraud. Following a hearing thereon the husband was denied relief, and he has appealed.

The wife will be referred to as plaintiff and the husband as defendant.

The parties were married in 1942 and are the parents of two children. From 1949 until 1955 they lived in Overland Park, in Johnson County. She was employed as a bookkeeper and general secretary at an elementary school in Johnson County, and he was a television engineer for a Kansas City, Missouri, station. In September 1955 they entered into a contract for the sale of their home in Overland Park and defendant husband left for Hawthorne, California, where he obtained employment. Plaintiff wife and the children remained behind in order to close the sale. After this was accomplished she quit her employment, shipped the household furniture to Hawthorne, and she and the children joined defendant in California in December 1955. The family moved into a house in Hawthorne that defendant had previously rented. The children were enrolled in school and plaintiff obtained employment near Hawthorne.

Apparently some of their prior marital difficulties developed, and in March 1956 plaintiff and the children returned to Kansas and came to the home of plaintiff's parents at Basehor, Leavenworth County. Defendant's efforts to persuade her to return to California were futile and so he returned to Kansas, arriving at Basehor on May 9, 1956, at which time plaintiff informed him that she had filed suit for divorce in Leavenworth County on the previous day. Summons issued to the sheriff of Leavenworth County being returned unserved, an alias summons was issued to the sheriff of Johnson County, and on May 15, 1956, through the 'co-operation' of plaintiff, defendant was personally served in Johnson County. He did not answer or otherwise plead, and plaintiff obtained a default decree of divorce on July 12, 1956. By the decree she was awarded custody of the two children; defendant was ordered to pay the sum of $30 per week for their support and maintenance until further order of the court, and certain property owned by plaintiff and defendant was divided between them. So far as the record discloses the provisions of the divorce decree was carried out by the parties and no appeal was taken.

In November 1956 defendant, having engaged counsel, filed a petition under the provisions of G.S.1949, 60-3007 and 3008, to vacate and set aside the decree of divorce on the ground it was obtained by fraud in that plaintiff had not been an actual resident in good faith of the state for one year next preceding the filing of her petition, and neither was she a resident of Leavenworth County at that time.

Issues were joined and at the hearing thereon considerable evidence was introduced with respect to the facts and circumstances surrounding the move by the parties from Kansas to California, and with particular reference to the alleged relinquishment by plaintiff of her Kansas residence during the period of approximately three months she was in California. For reasons which will hereafter appear, we need not detail that evidence.

At the conclusion of the hearing the trial court indicated quite clearly by its remarks that it was of the opinion plaintiff had lost her Kansas residence when she moved to California and therefore was ineligible to file her divorce petition in May 1956, and that 'if it had known then what it knows now the decree of divorce would not have been granted.' The court ruled, however, that as no evidence was introduced to established extrinsic fraud such as to warrant the relief sought, defendant's petition to vacate the decree must be denied.

From that ruling defendant has appealed.

G.S.1949, 60-1502, provides that the plaintiff in action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned.

G.S.1949, 60-508, provides that an action for a divorce may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition, or where the defendant resides or may be summoned.

G.S.1949, 60-2502, provides that where an action is rightly brought in any county, a summons shall be issued to any other county against any one or more of the defendants.

These statutes, which are to be construed together, speak for themselves.

Plaintiff's verified petition for divorce, filed on May 8, 1956, alleged

'* * * that she is a resident of Basehor, Leavenworth County, Kansas, and has for more than one year last past been an actual resident in good faith of Johnson County, Kansas, and Leavenworth County, Kansas.'

and

'* * * that the plaintiff at the instance and request of the defendant is now residing at the home of her parents in Basehor, Leavenworth County, Kansas.'

These allegations considered at their face value, plaintiff was entitled to file the action, it was properly filed in Leavenworth County, and service of summons on defendant in Johnson County was proper.

The decree of divorce rendered on July 12, 1956, after taking note of the personal service of summons upon defendant and his complete default, contains the finding

'* * * that said plaintiff has been an actual resident in good faith of the State of Kansas for more than one year next preceding the filing of her petition herein and a resident of Leavenworth County, Kansas, in which this action is brought at the time her petition...