Pasko v. Trela

• Decision Date: 09 February 1951
• Docket Number: No. 32894,32894
• Citation: 46 N.W.2d 139,153 Neb. 759
• Parties: PASKO v. TRELA.
• Court: Nebraska Supreme Court

Page 139

46 N.W.2d 139

153 Neb. 759

PASKO v. TRELA.

No. 32894.

Supreme Court of Nebraska.

Feb. 9, 1951.

Syllabus by the Court

1. In appropriate and timely proceedings, the district court has jurisdiction and authority to vacate and modify any part or all of its own judgment or orders in a divorce action after the term at which they were made for fraud practiced by the successful party in obtaining the same.

2. Fraud may consist in words, acts, or the suppression of material facts with intent to mislead and deceive.

3. Where fraud or misrepresentation is material with reference to a transaction subsequently entered into by a person deceived thereby, it is assumed, in the absence of facts showing the contrary, that it was induced by the fraud or misrepresentations.

4. The fact that plaintiff made inquiries elsewhere which did not disclose the falsity of the representations is ordinarily no defense. The plaintiff is entitled to relief if the representations were a material inducement to the contract, although he may have made efforts to discover the truth thereof, and did not rely wholly on the veracity of the defendant.

5. The fact that the recipient of a fraudulent misrepresentation relies in part upon his own investigation does not relieve the maker from liability if he by false statements or otherwise intentionally prevents the investigation from being effective, and no right is ordinarily affected by an investigation which confirms the representations.

6. The truth or falsity of representations must be determined as of the time they were acted on.

7. In the division of property and allowance of alimony in a divorce action, the court, in the exercise of judicial discretion, should consider the estate of the parties, if any, at the time of the marriage and their contributions since; the duration of the marriage; the wife's loss of interest in the husband's property by virtue of the divorce; the social standing, comforts, and luxuries of life which the wife would probably have enjoyed; the conduct of the parties leading up to the divorce; to which party the divorce was granted; the age, condition of health, and carning ability of the parties; and all other relevant facts and circumstances; and make such an award as appears to be fair and equitable.

8. In cases where the divorced wife seeks modification of a decree of alimony, alleging that the decree was obtained by fraud of the husband, or his agents, the district court has authority to require the husband to pay into court a reasonable sum of money; including an attorney's fee, to enable her to prosecute or defend her action.

9. Such an action is a proceeding ancillary to the original divorce proceeding and deemed a part thereof, giving the court authority to exercise a judicial discretion and grant the same relief, including an allowance for suit money or attorneys' fees, as it had in the original suit, and such allowance may be made at any stage of the litigation or included in the final decree.

Theodore L. Kowalski, Norman H. Denenberg, Omaha, for appellant.

George B. Boland, John R. McCormack, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

On January 12, 1949, Eva Trela, as plaintiff, was granted an absolute divorce by the district court for Douglas County, from John Trela, defendant, on the ground of extreme cruelty. Plaintiff's former name of Eva Pasko was restored. On that date the parties also executed a property settlement in writing which was approved by the court, whereby plaintiff was paid $2,000 by John Trela in lieu of alimony or any interest she may have had in and to any of his property, and in full for any claim she might have had by reason of her loss of a widow's pension from the police department of New York City.

Thereafter, on April 15, 1950, within the time required by section 25-2008, R.R.S.1943, Eva Pasko as plaintiff filed, in conformity with section 25-2002, R.R.S.1943, a petition wherein John Trela was defendant, seeking thereby to vacate and modify that part of the divorce decree approving the property settlement, and set aside the property settlement upon the ground, as provided in section 25-2001, R.R.S.1943, that such settlement and judgment of approval thereof were obtained by fraud practiced by defendant in that he was guilty of misrepresentations, concealment, conspiracy, and perjury with regard to his then money and property, which induced plaintiff to make the settlement. She also prayed that the court should enter a decree adjudging the true and just property rights between the parties, and for general equitable relief. Defendant answered, denying generally that he was guilty of any fraud, and alleged that plaintiff, who was represented by counsel at all times, had voluntarily accepted the settlement and approval with full knowledge of her rights and was estopped to assert that it was invalid.

Upon trial of the issues plaintiff adduced ample competent evidence to sustain the aforesaid allegations of fraud by defendant, who offered no evidence whatever to refute the same. Nevertheless, the trial court entered a decree finding and adjudging generally for defendant and against plaintiff, primarily upon the ground that prior to the execution of the property settlement and approval thereof, she had full knowledge of the facts and was fully advised of her rights by competent counsel. The judgment dismissed plaintiff's petition and taxed all costs generally to her, but allowed her an attorney's fee of $500, to be paid by defendant. Plaintiff's motion for new trial and defendant's motion to set aside that portion of the judgment allowing plaintiff an attorney's fee, were both overruled. Therefrom, plaintiff appealed, assigning substantially that the judgment finding generally for defendant and dismissing her petition was not sustained by the evidence but contrary thereto and contrary to law. We sustain the assignments.

Defendant cross-appealed, assigning substantially that the trial court was without statutory authority to allow plaintiff an attorney's fee. We conclude that the assignment has no merit.

It is generally the rule that in an appropriate and timely proceeding prosecuted under the aforesaid statutes, the district court has jurisdiction and authority to vacate or modify any part or all of its own judgment or orders in a divorce action after the term at which they were made for fraud practiced by the successful party in obtaining the same. Wisdom v. Wisdom, 24 Neb. 551, 39 N.W. 594, 8 Am.St.Rep. 215; Schafer v. Schafer, 71 Neb. 708, 99 N.W. 482; Williams v. Williams, 119 Neb. 8, 226 N.W. 798.

In Faulkner v. Klamp, 16 Neb. 174, 20 N.W. 220, this court held that: 'Fraud may consist in words, acts or the suppression of material facts, with the intent to mislead and deceive.' See, also, 37 C.J.S., Fraud, § 9, p. 225, § 15, p. 242; 23 Am.Jur., Fraud and Deceit, § 24, [153 Neb. 763] p. 776, § 76, p. 850; Restatement, Contracts, § 471, p. 891.

As said in Restatement, Contracts, § 470, p. 890: '(1) 'Misrepresentation' in the Restatement of this Subject means any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.

'(2) Where a misrepresentation would be likely to affect the conduct of a reasonable man with reference to a transaction with another person, the misrepresentation is material, except as this definition is qualified by the rules stated in § 474.' The qualification has no application here.

As stated in section 479, p. 915: 'Where fraud or misrepresentation is material with reference to a transaction subsequently entered into by a person deceived thereby, it is assumed in the absence of facts showing the contrary that it was induced by the fraud or misrepresentation.' See, also, George v. Guarantee Mutual Life Co., 144 Neb. 285, 13 N.W.2d 176.

Also, as stated in 37 C.J.S., Fraud, § 22, p. 259: 'It is generally held that a fraudulent intent or the equivalent thereof is an essential element of fraud, and that such intent may be established by appropriate inference or presumption from the facts proved.'

This court held in Foley v. Holtry, 43 Neb. 133, 61 N.W. 120, 121: 'The fact that the plaintiff made inquiries elsewhere which did not disclose the falsity of the representations is no defense. The plaintiff is entitled to relief if the representations were a material inducement to the contract, although he may have made efforts to discover the truth thereof, and did not rely wholly upon the veracity of defendant.'

As stated in 23 Am.Jur., Fraud and Deceit, § 144, p. 945: 'The mere fact that one makes an independent investigation or examination, or consults with others, does not necessarily show that he relies on his own judgment or on the information so gained, rather than on the representations of the other party, nor does it give rise to a presumption of law to that effect. If, under the circumstances, he is unable to learn the truth from such examination or investigation or, without fault on his part, does not learn it and in fact relies on the representations, he is entitled to relief, all other ingredients of liability being present. It is well settled that where the representee makes only a partial investigation, relies in part upon the representations, and is deceived by such representations to his injury, he may maintain an action for such deceit or secure appropriate equitable relief. Furthermore, no right is affected by an investigation which confirms the representations.' See, also, 23 Am.Jur., Fraud and Deceit, § 147, p. 951.

As stated in Restatement, Torts, § 547, p. 107: 'The fact that the recipient of a fraudulent misrepresentation is relying upon his own investigation does not relieve the maker from liability if he by false statements or otherwise intentionally prevents the...