Hargis v. Hargis

• Decision Date: 03 October 1933
• Citation: 66 S.W.2d 59,252 Ky. 198
• Parties: HARGIS v. HARGIS.
• Court: Kentucky Court of Appeals

66 S.W.2d 59

252 Ky. 198

HARGIS v. HARGIS.

Court of Appeals of Kentucky

October 3, 1933

Rehearing Denied Jan. 23, 1934.

Appeal from Circuit Court, Fayette County.

Proceedings by Joanna E. Hargis against A. H. Hargis to collect alimony under a judgment granting petitioner an absolute divorce. From an order overruling defendant's motion to set aside the judgment, sustaining demurrers to his answers, and striking third amended answer and counterclaim from the record, defendant appeals.

Affirmed.

A. H Hargis, of Jackson, for appellant.

Townsend & Park, of Lexington, for appellee.

RICHARDSON Justice.

This action was filed on the 31st day of August, 1926, by Joanna E. Hargis against her husband, A. H. Hargis, for alimony and a divorce from bed and board. The grounds set up in her petition are that he had driven her from her home, refused to furnish her support and permit her to return to their home. He traversed the petition, and charged abandonment on her part for more than five years next before the filing of the action; that she had a settled aversion for him, refused to contribute to his comfort, happiness, or success; that she engaged in conduct in every way a hindrance and drawback to him and his business, rather than an assistance; and that she had ceased to live with him for more than ten years, and during the past ten years or more her actions and conduct had been such as to show that she had ceased to love him or show any interest in him "of any kind or character." He therein declared that "he would be willing for her to return to his home; that she would be welcome, if she would treat him as a wife should treat her husband and manifest any love or consideration for him, or interest in him or his business affairs." The answer was controverted by reply. Evidence was taken on the issues joined. The parties testified elaborately, justifying their actions, conduct, and relations toward each other. A great deal of their testimony describes the property they respectively owned.

On the 29th day of January, 1927, the petition was amended by adding a prayer for an absolute divorce. On the 19th day of February, 1927, a judgment was entered granting the wife an absolute divorce. A part of the same judgment recites that "The parties having mutually agreed concerning their property rights and upon the alimony to be paid to the plaintiff, it is now ordered and adjudged that the defendant be, and he is hereby ordered and required to pay to the plaintiff as permanent alimony the sum of $250.00 a month in advance, beginning the 1st day of February, 1927; said permanent alimony to be paid to the plaintiff for and during the life of the plaintiff or until her remarriage. *** It is further ordered and adjudged pursuant to the agreement of the parties that all property matters between them have been settled and adjusted." The judgment deals with other provisions of the agreement, not now involved. He paid the sum of $250 per month in accordance therewith for a period of about three years, then quit. On the 8th day of July, 1930 she filed an affidavit stating that $2,250 was unpaid of the monthly, permanent alimony, and requested the court for a rule against him to show cause why he had not paid it. In September, 1930, she filed a second affidavit fixing the unpaid alimony at $2,750. He filed his affidavit in response to the rule. On the 30th day of September, 1930, he filed "an answer to the rule and petition," in which he sought to set aside the judgment entered on the 19th day of February, 1927, allowing her permanent alimony of $250 per month and settling their property rights. In February, 1932, he filed his affidavit "as to the finances of plaintiff and defendant." On the 4th day of October, 1930, a judgment was entered for the alimony, uncollected and unpaid from November 1, 1929, to October 1, 1930. In an affidavit filed in accordance with section 1653, Ky. Statutes, an immediate execution was directed to be issued. It was issued and placed in the hands of the sheriff of Breathitt county for execution. He levied it on certain personal property of A. H. Hargis. On the 11th day of October, 1930, he entered a motion, supported by his affidavit, for a new trial of her application to determine the amount of alimony unpaid between the dates indicated above. Also on the same day, he filed amended answer and counterclaim to the application for the payment of past due alimony. On the 6th day of November, 1930, she entered a motion for a rule against him to show cause why he should not be adjudged guilty of contempt for mutilating and destroying the execution issued against him in her favor. He filed a response to this rule, entitled an "answer." The court adjudged his response sufficient and imposed no punishment. On the 14th day of February, 1931, in open court, he was cross-examined. On the 21st day of February, 1931, he filed an amended answer and counterclaim in which he sought to set aside the order fixing the amount of the unpaid alimony. This pleading was traversed by his wife. Evidence was taken in behalf of the parties on the issues thus joined. Again he testified, detailing fully the actions, conduct, and relations of himself and wife, and describing in detail the property owned by himself and her. On the 28th day of September, 1931, he filed a third amended answer and counterclaim attacking the order fixing the past-due alimony, on the ground that it "was entered pursuant to an illegal, void and fraudulent contract." On the 22d day of January, 1932, the action was submitted for trial on the pleadings and evidence. An order was entered overruling the motion to set aside the judgment, sustaining the demurrer to his several answers, and striking from the record his third amended answer and counterclaim. From it, this appeal is prosecuted.

Before the agreed judgment was entered in February, 1927, A. H. Hargis, by writing proposed to pay Joanna E. Hargis $250 per month, according to its terms; also submitted other propositions. It was accepted by her, and an agreed judgment was entered in February, 1927, in accordance therewith. The formality of his attack on this judgment is objectionable, but waiving such, we shall consider his right to have the judgment set aside on the grounds of fraud and duress which he charges in his pleadings and attempts to sustain by his evidence. A judgment, though entered pursuant to the agreement of the parties, may be attacked on either or both of these grounds, and when sustained by the evidence, it becomes the duty of the court to grant relief. Considering, without determining, that the allegations in his pleadings properly and sufficiently alleged fraud and duress, neither of the grounds is shown by the evidence. The proposition of settlement was voluntarily written and signed by him, not in the presence of his wife, or her attorneys. He made it on his own accord, acting on his own judgment, uninfluenced by his wife, or any one in her behalf. As a basis of his charge of fraud and duress, he charges in his pleadings, and testifies in detail, that the publication, in certain newspapers, of the nature and purpose of this action, caused his bank to lose its deposits and depositors, to decrease in business, to become insolvent, and thereby he became a bankrupt. While there is a contrariety of evidence bearing on these questions, we are unable to see that such facts, if true, affected the validity of the agreed judgment, entered in pursuance to the written contract of the parties. Conceding that these facts produced the result claimed by him, neither the publication, nor the claimed result, affects the agreed judgment.

"To establish actionable fraud, or fraud against which equity will relieve,-- and, as we have seen, the same rule applies in Kentucky to both classes of cases,--it must appear that the misrepresentation was of a matter of material fact, as distinguished from opinion, at the time or previously existing, and not a mere promise for the future; must be relied upon by the person whose action is intended to be influenced; and must be made with knowledge of its falsity, or under circumstances which did not justify a belief in its truth. This is the doctrine deducible from the Kentucky decisions." Livermore v. Middlesboro Town-Lands Co., 106 Ky. 163, 50 S.W. 6, 13, 20 Ky. Law Rep. 1704. This language has been quoted and approved by the Court of Appeals in the following cases: Chicago Building & Mfg. Co. v. Beaven, 149 Ky. 267, 148 S.W. 37; Taylor v. Mullins, 151 Ky. 597, 152 S.W. 774; Bewley v. Moremen, 162 Ky. 32, 171 S.W. 996.

"One who charges fraud, be he plaintiff or defendant, assumes the burden of sustaining his accusation by such legal evidence as will overcome the legal presumption of innocence and beget a belief of the charge of fraud." Dennis v Thomson, 240 Ky. 727, 43 S.W.2d 18, 22, and cases cited. It was the duty of A. H. Hargis under this rule to make out his case to set aside the agreed judgment on the theory of fraud, and he was required to establish by at least some evidence that Joanna E. Hargis was a party to the act, either...