Groover v. Groover, 78-2207

• Decision Date: 07 May 1980
• Docket Number: No. 78-2207,78-2207
• Citation: 383 So.2d 280
• Parties: William M. GROOVER, Appellant, v. Hazel GROOVER, Appellee. /T4-244.
• Court: Florida District Court of Appeals

Page 280

383 So.2d 280

William M. GROOVER, Appellant, v. Hazel GROOVER, Appellee.

No. 78-2207/T4-244.

District Court of Appeal of Florida, Fifth District.

May 7, 1980.

Lee S. Damsker, Tampa, for appellant.

Jon S. Rosenberg, Orlando, for appellee.

PER CURIAM.

The issue in this case is whether the trial court erred in dismissing the complaint of appellant, a collateral attack on a divorce judgment entered in 1971, pursuant to Rule 1.540(b), Florida Rules of Civil Procedure.

The facts are simple: William Groover married Hazel in 1955 in Indiana. She was previously married to a man named Cox and had never been divorced from him. After some sixteen years of marriage, Hazel Groover filed for divorce against William in Florida in 1971 on the sole ground of cruelty; the answer admitted the marriage. The divorce was granted to the wife on the basis of the alleged cruelty. After non-payment of alimony and enforcement proceedings against him, William Groover filed an independent action in 1977 seeking to invalidate the divorce judgment, hence the alimony order, on the ground that the 1955 marriage was bigamous and void ab initio and, therefore, Hazel had committed a fraud upon the court in obtaining the judgment in 1971.

Testimony was presented in the cause. There was conflicting evidence as to whether William knew that his marriage to Hazel was bigamous at the time of its dissolution in 1971. The trial court entered an order with the following finding:

(T)he Husband could, and should, have litigated the question sought to be raised now by collateral attack.

The Court has heard testimony as to whether the husband knew, or should have known, that the wife had not been divorced from the previous husband, but does not here decide that issue. (Emphasis added.)

The above paragraphs are logically irreconcilable. Unless the trial court found actual or constructive knowledge by the husband of the bigamy, how could it be said that he should have litigated that question?

The trial court then dismissed the complaint with prejudice pursuant to Rule 1.420(b), Florida Rules of Civil Procedure, apparently on the authority of Alexander v. First Nat'l. Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973). The trial court found that such fraud or misrepresentation as may have been chargeable to Hazel Groover was merely a factual misrepresentation that did not relate to jurisdiction of the court and, therefore, was the type of fraud contemplated by subsection (3) of Rule 1.540(b), Florida Rules of Civil Procedure and which should have been raised by motion in the original action within one year after the judgment, rather than the type contemplated by subsection (4) of that rule referring to a judgment that is void.

This is clearly erroneous. A marriage that is bigamous is void and cannot support an award of alimony when the putative wife is the wrongdoer or equally responsible with the husband in creating the situation. Burger v. Burger, 166 So.2d 433 (Fla.1964). To render a valid judgment of divorce that would support an alimony award, as opposed to a declaratory "divorce judgment" based on bigamy (which is equivalent to an annulment), the trial court must have jurisdiction of a valid marriage. See Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 294 (1929) and Young v. Young, 97 So.2d 470 (Fla.1957). Before subject matter jurisdiction can be exercised, it must be lawfully invoked. Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743 (1947). To represent to a circuit court that a marriage is valid as opposed to void is not a misrepresentation inducing merely "an incorrect factual determination by the trier of fact," as is discussed in Alexander, supra, and upon which the trial court relied for its dismissal of this action. Cf., Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976). Moreover, a bigamous marriage may be attacked at any time. In re Estate of Kant 272 So.2d 153 (Fla.1972); Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932).

The record indicates that Hazel knowingly entered into a bigamous marriage with William; that marriage was void ab initio and cannot support an award of alimony. As there was no valid marriage, there could be no divorce in the customary fashion; the only ground for a declaratory "divorce judgment" available to the parties was bigamy which was not alleged. Thus, the court never acquired jurisdiction over the subject matter and its final judgment of divorce is void. The misrepresentation chargeable to Hazel was not merely factual but was jurisdictional and it was the type of "fraud on the court" for which relief should have been granted pursuant to Rule 1.540(b). Appellee's contention that any irregularities in the proceedings were, or should have been, litigated is without merit; parties cannot, even by consent, confer subject matter jurisdiction upon the court. Hadley v. Hadley, 140 So.2d 326 (Fla. 3d DCA 1962).

The court therefore erred in dismissing the husband's action to vacate the final judgment of divorce and the cause is remanded with directions to reinstate the complaint for a full hearing on all the issues.

During the trial, the Groovers stipulated to a property settlement and child custody agreement which was incorporated into the final judgment of divorce. Under the terms of the judgment, Hazel was awarded permanent custody of the children, child support and alimony which would cease upon her remarriage. Hazel was required to convey jointly owned property to William. The record does not indicate whether William agreed to the alimony payments, or merely agreed to a division of their jointly owned property, or whether Hazel accepted the alimony payments as consideration for relinquishment of her interest in the joint property. Had William agreed to make the payments as part of the consideration for acquisition of Hazel's property interests, then he would be bound by his stipulation. Generally, a stipulation properly entered into by parties and relating to a matter appropriate to stipulation will be binding upon the parties. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Welch v. Gary Moss Bendholders Corp., 128 Fla. 722, 175 So. 529 (1937). Here, the child custody and the property settlement were appropriate matters for stipulation in an original proceeding, a portion of which was valid as the court has inherent jurisdiction to control and protect infants and their property. Cone v. Cone, 62 So.2d 907 (Fla.1953). To avoid the consequences of the stipulation, a party must show that the agreement was obtained by fraud, misrepresentations or mistake of fact. Esch v. Foster, 123 Fla. 905, 168 So. 229 (1936); Curr v. Helene Transportation Corp., 287 So.2d 695 (Fla. 3d DCA 1973).

Appellant has asked not only for relief from the judgment but also a return of the alimony payments already made. Whether he should be reimbursed or even relieved of the obligation to make future "alimony" payments will depend on several factors, including:

1. Whether he knowingly participated in the "fraud on the court" by failing to challenge the validity of the marriage in the original suit;

2. Whether his promise to pay "alimony" was a part of the consideration for Mrs. Groover's conveyance of her interest in the jointly owned property;

3. How long he waited to reveal the fraud after learning of his wife's omission.

If Appellant fails to demonstrate good cause for avoiding the consequence of his stipulation in its entirety, he should be bound by its provisions.

The order of dismissal is REVERSED and this cause is REMANDED for a new trial consistent with this opinion.

COBB and UPCHURCH, JJ., concur.

MILLER, ROBERT P., Associate Judge, dissents with opinion.

MILLER, ROBERT P., Associate Judge, dissenting:

The majority opinion states that since there was no valid marriage there could be no divorce (in the customary fashion), and therefore the Court never acquired jurisdiction over the subject matter and its Final Judgment of Divorce is void. Such reasoning is fundamentally wrong. Subject matter jurisdiction depends upon the allegations in the complaint irregardless whether or not such allegations are true or false. Subject matter jurisdiction is the power of the Court to determine whether or not such allegations are true or false. Rule 1.540(b)(3), Florida Rules of Civil Procedure, provides that a party may be relieved of such determination if the same was procured by fraud so long as the motion for such relief is filed within one year. Apparently grounds for such relief existed in this case but no motion was filed. The one year period has passed and...