John E. Deyette v. Eugenie Deyette. Eugenie Deyette v. John E. Deyette
| Decision Date | 12 April 1918 |
| Parties | JOHN E. DEYETTE v. EUGENIE DEYETTE. EUGENIE DEYETTE v. JOHN E. DEYETTE |
| Court | Vermont Supreme Court |
November Term, 1917.
PETITION and cross petition for divorce. Heard together at the March Term, 1917, Chittenden County, Butler, J presiding. Decree granting the petition of John E. Deyette dismissing the petition of Eugenie Deyette, and giving the custody of the minor child of the parties to Eugenie Deyette. John E. Deyette excepted. The opinion states the case.
Judgment affirmed and cause remanded.
V. A. Bullard and John J. Enright for John E. Deyette.
Alfred L. Sherman and Rufus E. Brown for Eugenie Deyette.
Present: WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
The petitioner, John E. Deyette, filed his petition for a divorce, and the petitionee, Eugenie Deyette, filed her cross petition. The two petitions were heard together. A bill of divorce was granted the petitioner for intolerable severity, and the cross petition was dismissed. The care and custody of the minor child was granted to the petitionee, and the petitioner was ordered to pay one hundred dollars per year to the petitionee toward the care and support of the child until she shall arrive at the age of sixteen years. The case is here on the petitioner's exceptions.
It appeared that the petitionee had previously married one Borst in the state of New York, and that a decree of annulment of that marriage had been granted by a New York court, on the ground that she was married to him prior to, and had not lived or cohabited with him as husband and wife since attaining, the age of legal consent. A certified copy of the record of those proceedings was introduced in evidence, and is made a part of the exceptions. It seems from that record that at the time those proceedings were instituted, all the parties thereto were domiciled in the state of New York, and no claim is here made to the contrary. The record shows that the process was personally served upon the defendant Borst within that state. It therefore appears that the New York court had jurisdiction of the parties and of the subject matter. Borst failed to appear in answer to the case, and was wholly in default. Those proceedings were brought, and the decree therein rendered, under a statute of that state permitting a marriage to be annulled when contracted by a party of less than eighteen years of age, provided the parties did not freely cohabit as husband and wife after such party had attained that age.
In the trial of the present case the petitioner sought to vitiate the New York decree, on the ground of fraud in its procurement; and on this question he was permitted to show, subject to exception, that Eugenie and her mother there testified that the former was born on August 31, 1887, when in fact she was born on August 31, 1886; that in fact she was eighteen years of age on August 31, 1904; that she was married to Borst in the preceding October, and continued to live with him as husband and wife until the summer of 1905, and consequently they thus lived together for nearly a year after she attained the age of legal consent. The petitioner contends that the New York decree was therefore based upon fraud respecting an essential fact, by reason of which it is open to collateral attack, and is void.
That the question of jurisdiction of the New York court was open to inquiry is beyond doubt. Domenchini's Adm'r v. Hoosac Tunnel & W. R. R., 90 Vt 451, 98 A. 982. But the fraud shown did not go to the jurisdiction. We will assume that such a judgment rendered in that state may be impeached in a collateral action, for fraud; yet it can only be for fraud extrinsic or collateral to the matter tried in that action--it cannot be impeached by either of the parties thereto, by reason of false testimony given at the time, even though given by a party. Camp v. Ward, 69 Vt. 286, 37 A. 747, 60 Am. St. Rep. 929; French v. Raymond, 82 Vt. 156, 72 A. 324, 137 Am. St. Rep. 994. It is said, however, that the petitioner in the present action is a stranger to the foreign decree, and therefore he may impeach it collaterally, citing in support of this position Blondin v. Brooks, 83 Vt. 472, 76 A. 184. In that case the fraud was as to the domicile of the plaintiff to the action in which the foreign judgment was rendered, and went to the jurisdiction. This Court said the defendants in the case of Blondin v. Brooks were strangers to it, and that strangers can impeach a judgment collaterally "when it is for their interest to impeach it at all." Granting (though not deciding) that a stranger to a judgment may impeach it for intrinsic fraud, if it be for his interest to do so, his "interest" must be such, at least, as concerns him in the collateral action wherein the impeachment is sought. Otherwise he...
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