Hartford v. Hartford

• Court: Ohio Court of Appeals
• Writing for the Court: PARRINO; CORRIGAN; DAY
• Citation: Hartford v. Hartford, 53 Ohio App.2d 79, 371 N.E.2d 591, 7 O.O.3d 53 (Ohio App. 1977)
• Decision Date: 18 August 1977
• Parties: , 7 O.O.3d 53 HARTFORD, Appellee, v. HARTFORD, Appellant.

Page 79

53 Ohio App.2d 79

371 N.E.2d 591, 7 O.O.3d 53

HARTFORD, Appellee, v. HARTFORD, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 18, 1977.

Syllabus by the Court

Civil procedure Civ.R. 60(B) Motion to vacate for fraud on court Not subject to one year limitation Civ.R. 60(B)(5) construed.

1. A motion to vacate a judgment based on an alleged fraud upon the court is not subject to the one year limitation of Civ.R. 60(B)(3), and such a motion may be filed pursuant to Civ.R. 60(B)(5), which allows relief from a judgment for any reason justifying such relief.

2. Civil Rule 60(B)(5) reflects the inherent power of a court to relieve a party from a judgment procured by a fraud upon the court, and the only limitation on such a motion is that it must be filed within a reasonable time.

Stanley Morganstern, Cleveland, for appellee.

Hyman J. Blum, Cleveland, for appellant.

PARRINO, Judge.

On January 3, 1972, Audrey Hartford, appellee, filed a complaint for divorce in the Court of Common Pleas of Cuyahoga County. The complaint alleged that appellee and appellant, James W. Hartford, were married in 1961, and that one child, Brian Paul, age five years, was born as issue of the marriage. Mrs. Hartford prayed for a divorce, custody of the child, and support for the child.

Appellant did not file an answer, and the case proceeded uncontested. Following a hearing, the court filed a judgment entry granting appellee a divorce. The court specifically found that one child, Brian Paul, was born as issue of the marriage, and awarded custody of the child to appellee. Appellant was ordered to make support payments for the child in the amount of $37.50 per week plus necessary medical and dental expenses.

Appellant made the court-ordered support payments until July 1975. At that time, after consultation with an attorney, he ceased to make the payments. On August 12, 1975, appellant filed a motion to set aside the judgment entry of divorce as it related to the paternity of the child, Brian Paul Hartford. The motion was designated as being brought under Civil Rule 60(B)(5). In the motion and its accompanying affidavit, appellant alleged that he was not the biological father of Brian Paul, and that he should not be required to support the child.

On December 5, 1975, appellant filed a supplemental motion alleging Civil Rule 60(B)(4) as an additional ground for vacating the prior judgment.

On November 24, 1975, appellee filed a motion to dismiss appellant's motion to vacate, alleging that the motion was not timely filed.

The trial court conducted a hearing on the motion on March 4, 1976, at which both parties testified. The evidence presented indicated that the parties had separated in October 1965 and did not live together again until March of 1966. During that time appellee became pregnant by another man. The child, Brian Paul, was born on September 19, 1966. It was admitted by appellee that appellant was not the biological father of the child.

Appellee testified that she did not inform the court prior to the granting of the divorce that appellant was not the child's father. However, she could not remember whether she was asked that question by the court.

From the testimony of both parties, it was clearly established that appellee had told appellant that she was pregnant by another man in February 1966, before they resumed living together. Appellant's name appears on the child's birth certificate as the father.

The record further shows that in March of 1966 appellant received a deferment from the military draft, at his own request, based on his wife's pregnancy.

Appellant testified that before the reconciliation appellee had told him that her attorney had advised her that appellant would be considered the father of the child and would be responsible for the child's support. Appellee denied making any such statement to appellant.

On March 8, 1976, appellee filed a motion for expenses and attorney fees incurred in connection with the motion to vacate. The motion was accompanied by an affidavit by appellee's attorney listing the legal services rendered. The total amount of fees sought was $1,577.30.

On March 12, 1976, the trial court issued a "Memorandum of Opinion." The court stated that appellee's motion to dismiss was well taken, and that appellant's motion to vacate was not filed within a reasonable time. A journal entry reflecting these findings was filed on April 5, 1976. Appellant was thereby ordered to resume support payments as previously ordered. Furthermore, appellant was ordered to pay to appellee the sum of $600 as attorney fees.

Appellant has appealed to this court from the decision of the trial court. He has alleged two assignments of error for our review.

The first assignment of error alleges that the trial court committed prejudicial error when it overruled appellant's motion to set aside the divorce decree in regard to the paternity of the child.

Essentially, appellant contends that appellee perpetrated a fraud upon the court during the divorce proceedings by alleging in her complaint that a child was born as issue of the marriage, and by not informing the court that appellant was not the father of the child, and that, because of such fraud the trial court should have set aside the judgment. We disagree.

Civil Rule 60(B) governs the granting of relief from judgment. ^* Civil Rule 60(B)(3) provides that a court may grant relief from a final judgment for fraud, misrepresentation or other misconduct of an adverse party. However, under the rule, a motion for relief from judgment on that basis must be made within a reasonable time, and in any event not more than one year after the judgment was entered.

In this case, appellant filed his motion for relief from judgment more than three years after the date of the judgment. For that reason, he is clearly not entitled to relief under Civ.R. 60(B)(3).

Apparently realizing that his claim is not cognizable under Civ.R. 60(B)(3), appellant contends that that provision is not controlling, and that a claim of fraud upon the court is instead governed by the catch-all provision of Civ.R. 60(B)(5). That section states that relief may be granted for "any other reason justifying relief from the judgment." There is no fixed time period within which a motion for relief under that provision must be made. However, such a motion must be made within a "reasonable time."

We accept appellant's contention that the one year limitation of Civ.R. 60(B) (3) does not preclude a trial court from vacating a judgment obtained by the perpetration of a fraud upon the court. Even in the absence of a controlling rule of court or statutory provision, the Court of Common Pleas has inherent authority and power to vacate its own judgment when the judgment is procured by the successful party by such means as to constitute a fraud upon the court. Jelm v. Jelm (1951), 155 Ohio St. 226, 98 N.E.2d 401. See, Hazel-Atlas Glass Co. v. Hartford-Empire Co. (1944), 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250. Accordingly, we conclude that a motion to vacate a judgment based on an alleged fraud upon the court is not subject to the one year limitation of Civ.R. 60(B) (3). Such a motion may be filed pursuant to Civ.R. 60(B)(5), which allows relief from judgment for any reason justifying such relief. Civil Rule 60(B) (5) reflects the inherent power of a court to relieve a party from a judgment procured by a fraud upon the court, and the only limitation on such a motion is that it must be filed within a reasonable time.

However, it is our conclusion that appellant is not entitled to relief from judgment under Civ.R. 60(B)(5) in this case.

As we have already pointed out, in order to avoid the one year limitation of Civ.R. 60(B)(3), a litigant seeking to vacate a judgment based on a claim of fraud must show that he comes within the scope of Civ.R. 60(B)(5) because the fraud was such as to constitute a fraud upon the court. However, the determination of whether allegedly fraudulent conduct in the course of litigation is a "fraud upon the court" so as to be exempt from the time limitation of Civ.R. 60(B)(3) is not an issue subject to simple resolution. Technically speaking, any fraud or misrepresentation perpetrated in connection with a matter pending before a court could be construed as a fraud upon the court. Moore and Rogers, Federal Relief from Civil Judgments, 55 Yale L.J. 623, 692 n. 266 (1946); 11 Wright and Miller, Federal Practice and Procedure 247, 253, Section 2870 (1973). However, if the term fraud upon the court is not narrowly interpreted, but is deemed to include all or substantially all types of fraud within Civ.R. 60(B)(3), then the time limitation of Civ.R. 60(B) (3) would be meaningless.

While no precise definition of fraud upon the court is possible, we believe, like most courts considering the matter, that the term as used in regard to obtaining relief from judgment must be narrowly construed to embrace only that type of conduct which defiles the court itself, or fraud which is perpetrated by officers of the court so as to prevent the judicial system from functioning in the customary manner of deciding the cases presented in an impartial manner. Serzysko v. Chase Manhattan Bank (C.A. 2, 1972),461 F.2d 699, certiorari denied 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139; Kupferman v. Consolidated Research & Mfg. Corp. (C.A. 2, 1972), 459 F.2d 1072; Konigsberg v. Security Natl. Bank (S.D.N.Y.1975), 66 F.R.D. 439; Armour and Company v. Nard (N.D. Iowa 1972), 56 F.R.D. 610; Lockwood v. Bowles (D.C.1969), 46 F.R.D 625; 7 Moore's Federal Practice 504, 515, Paragraph 60.33 (1975). Examples of fraud on the court justifying relief from judgment would include such "egregious misconduct" as bribery of a judge or jury, or fabrication of evidence by counsel. Pfizer, Inc., v. Intl. Rectifier Corp. (C.A. 8, 1976), 538 F.2d 180, 195, certiorari denied 429 U.S. 1040, 97...