Harchenko v. Harchenko

• Decision Date: 16 June 1950
• Docket Number: No. 7150,7150
• Citation: 43 N.W.2d 200,77 N.D. 289
• Parties: HARCHENKO v. HARCHENKO.
• Court: North Dakota Supreme Court

Page 200

43 N.W.2d 200

77 N.D. 289

HARCHENKO v. HARCHENKO.

No. 7150.

Supreme Court of North Dakota.

June 16, 1950.

Syllabus by the Court

1. A judgment, entered pursuant to the stipulation of the parties to an action, is as effective an adjudication of the issues in the case as one entered upon an actual trial of such issues.

2. Where the trial court had jurisdiction of the subject matter and the parties to an action, the judgment entered in such action may not be attacked collaterally by any of the parties thereto, or by those in privity with them.

3. Where a final decree of divorce decreed that plaintiff was entitled to receive specific items of the property of the parties and the payment to her of certain sums of money, in accordance with a stipulation of the parties, plaintiff was bound by the judgment and her action for damages for defendant's allegedly false representations which it is claimed induced her to consent to the judgment constitutes a collateral attack upon the judgment.

E. J. McIlraith, Minot, for appellant.

McGee & McGee and O. B. Herigstad, Minot, for respondent.

BURKE, Judge.

In this action, the plaintiff, Anne R. Harchenko, sought to recover from her former husband, William J. Harchenko, damages for fraud and deceit. In her complaint, she alleged that she and the defendant were divorced by a judgment of the District Court of Mountrial County on March 7, 1947; that in said judgment of divorce, the court decreed a property settlement and alimony in accordance with a written agreement and stipulation of the parties; that plaintiff had been induced to enter into such stipulation and agreement by the false and fraudulent representations of the defendant that certain property owned by them, but title to which was in defendant's name, was of the value of $21,000.00 when in truth and fact such property was of the value of $68 000.00; that plaintiff believed and relied upon such false representations and accordingly gave her consent to the stipulation of property settlement to her damage in the sum of $50,000.00.

Defendant demurred to plaintiff's complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer. Plaintiff elected to stand upon her complaint and judgment dismissing the action upon its merits was accordingly entered. Plaintiff has appealed from the judgment and from the order sustaining the demurrer.

The gist of defendant's demurrer is that plaintiff's complaint is a collateral attack upon that part of the judgment in the divorce action which decreed a settlement of the property of the parties. Plaintiff states that 'far from being a collateral attack, this action is one in aid of the former judgment. It is brought to restore Mrs. Harchenko to the position that she would have had if her husband had not deliberately defrauded her by grossly understating the value of the property.'

The judgment in the divorce suit decreed that defendant pay to the plaintiff the sum of $150.00 per month until the youngest of three children should reach the age of 18 years and thereafter $75.00 per month; that plaintiff and the children have free use of the family home until the youngest child should attain the age of 21 years; that defendant pay plaintiff $7,500.00 in cash; that plaintiff retain all U. S. Bonds in her possession and that she have all of the household goods located in the family home except the furniture in one bedroom which was reserved for the defendant. This judgment was entered pursuant to the provisions of Section 14-0524, NDRC 1943 which provides: 'When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectivey. * * *'

The power of the court to decree a property settlement was derived from the foregoing statute and not from the agreement of the parties. Agrest v. Agrest, 75 N.D. 318, 37 N.W.2d 697. 'The stipulation was an agreement which was to be submitted to the court for his advice and guidance in exercising the powers vested in him under the statute. The decree lost none of its effectiveness because the court accepted in toto the provisions of the stipulation instead of modifying them as he unquestionably had a right to do.' Karteus v. Karteus, 67 N.D. 297, 301, 272 N.W. 185, 187. It follows that a decree settling the property rights of the parties to a divorce action and granting alimony is an adjudication of what constitutes a just and proper distribution of the property of the parties, whether the decree be made pursuant to a stipulation or upon a consideration of, and findings made, upon other evidence in the case. Fishman v. Alberts, 321 Mass. 280, 72 N.E.2d 513; Harding v. Harding, 198 U.S. 317, 25 S.Ct. 679, 49 L.Ed. 1066; Sponseller v. Sponseller, 110 Ohio St. 395, 144 N.E. 48; Dean...