Karren v. Karren

• Decision Date: 05 July 1902
• Docket Number: 1367
• Citation: 25 Utah 87,69 P. 465
• Court: Utah Supreme Court
• Parties: TELITHA DEAN KARREN, Respondent and Appellant, v. FRED W. KARREN, Appellant and Respondent

69 P. 465

25 Utah 87

TELITHA DEAN KARREN, Respondent and Appellant, v. FRED W. KARREN, Appellant and Respondent

No. 1367

Supreme Court of Utah

July 5, 1902

Appeal from the First District Court, Cache County.--Hon. Charles H Hart, Judge.

Action to set aside a decree of divorce obtained by the defendant from the plaintiff. From a decree sustaining in part and setting aside in part the said decree, both parties appealed.

REVERSED AND DISMISSED.

George Q. Rich, Esq., and J. Z. Stewart, Jr., Esq., for appellant Fred W. Karren.

The plaintiff asks a court of equity to relieve her from the position in which she finds herself because the appellant did not carry out his alleged promises. If such had been the intention of F. W. Karren she was in equal guilt with him because according to her complaint it was in sole reliance upon these representations and to enable him to procure the deed by those means that she "neglected and failed to appear." For authorities bearing upon the law that no relief will be granted in such cases see: 5 Am. and Eng Ency. of Law (1 Ed.), p. 845; Blank v. Nohl (Mo Sup.), 19 S.W. 65; 3 Am. and Eng. Ency. of Law (1 Ed.), p. 379; 1 Pom. Eq. Jur. (2 Ed.), sec. 401; Webster v. Webster, 6 N.W. 170.

H. H. Henderson, Esq., for appellant Fred W. Karren.

Under section 1212 of the Revised Statutes of Utah relating to divorce, the court has jurisdiction at all times in the original case to change its decree as far as it relates to ailmony and the care and custody of the children. So far as that part of the case is concerned the court never lost jurisdiction to act. "Where a party to an equitable action has a plain and speedy remedy by motion in the action, he can not maintain a separate suit in equity to obtain the desired release." Ketchum v. Crippen, 37 Cal. 223; Ede v. Hazen, 61 Cal. 360; Park v. Highbee, 6 Utah 414; Parrish v. Parrish, 9 Ohio St. 367; Greene v. Greene, 2 Gray 361-367; 2 Bishop on M. and D., sec 1556.

N. Tanner, Jr., Esq., and James N. Kimball, Esq., for appellant Telitha Dean Karren.

The decree of divorce should be set aside in its entirety, because it appears from the findings that it was procured by default, which default was caused, and the respondent prevented from presenting a good and sufficient defense, by reason of appellant's misrepresentations to her; that it was also obtained upon testimony knowingly false, thus constituting a fraud upon the respondent, a fraud upon the court, and a crime against the laws of the State. 2 Bish., Mar. and Div., 744, 753 et seq.; Whitcome v. Whitcome, 46 Iowa 437; Rush v. Rush, Id. 648; Johnson v. Coleman, 23 Wis. 452; Freeman on Judgments, 99, 100, 250, 489, 491. Under the law, a divorce will not be granted the complaining party where the cause alleged for the divorce has been condoned, and certainly in this case no divorce would have been granted, had the defense of condonation been made, as is plainly indicated by finding of facts. 2 Bishop on Mar. and Div., 34.

BASKIN, J. MINER, C. J., concurs. BARTCH, J., concurs in result.

OPINION

BASKIN, J.

--The material allegations of the complaint are as follows: "That heretofore, to-wit, on the seventeenth day of September, 1900, in this First district! court, a decree and judgment was entered in an action wherein said defendant was plaintiff, and this plaintiff was defendant, in terms dissolving the bonds of matrimony between this plaintiff and said defendant, and awarding said defendant the three children, issue of the marriage between plaintiff and defendant, viz.: . . . And plaintiff further alleges that the summons in said action was never served upon her, and that she had no legal knowledge of the pendency of said action; that said judgment was rendered against her by default, and upon a complaint" which charged her (the defendant) with having been guilty of adultery. "And that, after the commission of the adultery complained of in the complaint (in said action for divorce), the said defendant forgave her, and lived with and cohabited with her as his wife, and so lived and cohabited with her during the pendency of the action aforesaid, and thereafter left her in possession and custody of their home and children while he went to fill a mission in the Southern states. And she further alleges that the said defendant represented to her and told her that he was procuring said divorce because of the insistence of his parents, and that after said divorce was procured he would remarry her, and provide for her as he had hitherto done, and under no circumstances deprive her of the custody of the said children, or of the homestead on which they then resided. That, at the time of the bringing of said suit, the title to said homestead was in the father of said defendant, and he, the said father, refused to make a deed to the said defendant of said homestead unless he would procure a divorce from this plaintiff. That, relying upon said representations of said defendant, and to enable him to procure the said deed to said homestead, she neglected and failed to appear and defend said action for divorce. That, notwithstanding said representations, the said defendant falsely and knowingly testified in court that he had not forgiven this plaintiff for her adultery, and falsely and knowingly obtained a decree awarding the custody of the said children to him, and falsely and knowingly testified in court that he had not lived or cohabited with this plaintiff after having knowledge of said adultery, and forcibly, and against her consent, took from her, her children, and turned her out of her home, and left her without the means of support. That she is in indigent circumstances, and has no property or means with which to support herself or to pay the expenses of this action. That the defendant is a man of means amply able to pay the expenses of this action, and to support this plaintiff."

The prayer of the complaint was that the decree of divorce be set aside; that the custody of the children be awarded to the plaintiff; and that alimony and certain sums of money for attorney's fees and her support during the pendency of the action be awarded to her. The representations and false testimony of the defendant set out in the complaint, and the allegation in respect to the service of the summons in the divorce suit, were denied by the answer. In the third finding of fact, the trial court found that the summons in the said divorce suit was duly served on the defendant in said action on the thirtieth day of July, 1900. Except in respect to the allegation relating to said summons, and the finding that the defendant herein, since the said decree of divorce, remarried on the third day of October, 1901, the other findings of fact are, in substance, the same as the aforesaid material allegations of the complaint. As conclusions of law from the findings of fact, the trial court found: "(1) That the plaintiff is not entitled to have the decree of divorce entered on the said seventeenth day of September, 1900, set aside, so far as it dissolves the bonds of matrimony between her and defendant. (2) That she is not entitled to recover attorney's fees or suit money in this action. (3) That the plaintiff herein is entitled to have the said decree, so far as it awards the custody of the children aforesaid to the said defendant, opened up and set aside, and is entitled to be allowed to answer in said divorce suit, setting up her rights, if any she has, to the said children, and for alimony and a division of the defendant's property. (4) That the plaintiff is entitled to have judgment, against the defendant, for her costs in this action." A decree in accordance therewith was made and entered. From this decree, both parties have taken an appeal.

The plaintiff contends that under the findings of fact she is entitled to a decree setting aside the decree of divorce, and the defendant contends that under the findings of fact the plaintiff is not entitled to any relief whatever. The findings of fact must support the judgment (8 Enc. Pl. and Prac., 943); and when it affirmatively appears that they fail to do so the judgment will be reversed on appeal. Maynard v. Association, 14 Utah 458, 47 P. 1030; Walley v. Bank, 14 Utah 305, 47 P. 147.

From the findings, and the plaintiff's allegations that she "relying upon the said representations of the defendant, and to enable him to...