Puterman v. Puterman

• Decision Date: 18 April 1949
• Docket Number: 2425
• Citation: 66 Wyo. 89,205 P.2d 815
• Parties: SAM PUTERMAN, Plaintiff and Respondent, v. SARAH PUTERMAN, Defendant and Appellant
• Court: Wyoming Supreme Court

205 P.2d 815

66 Wyo. 89

SAM PUTERMAN, Plaintiff and Respondent, v. SARAH PUTERMAN, Defendant and Appellant

No. 2425

Supreme Court of Wyoming

April 18, 1949

Appeal from District Court, Laramie County; SAM M. THOMPSON, Judge.

Divorce action by Sam Puterman against Sarah Puterman. From an order denying defendant's motion to open default judgment and to permit defendant to appear and defend, the defendant appeals.

Order reversed and case remanded with instructions.

For Plaintiff and Respondent the cause was submitted on the brief and oral argument of Carleton A. Lathrop of Cheyenne Wyoming.

POINTS OF COUNSEL FOR APPELLANT

When a Motion is filed within the term in which the Decree was granted, the court has full control over it. McGinnis v Beatty, 28 Wyo. 328, 204 P. 320; Sioux City Seed Co. v Montgomery, 42 Wyo. 170, 291 P. 918.

The law favors a trial upon the merits, and a party should not be placed or considered in default unless he has violated some statute, order or rule of the court, or stipulation of the parties. McGinnis v. Beatty, supra.

A judgment may be carried over the term by Motion to vacate or modify it filed upon notice at the term at which the judgment was rendered, and the court may grant relief requested at subsequent term. Ramsay v. Gottsche, 51 Wyo. 516.

A District Court may vacate or modify its own judgment or order, after the term at which the same was made for fraud practiced by the successful party in obtaining a judgment or order. Section 3-3801 W.C.S. 1945.

For Defendant and Appellant the cause was submitted on the brief of John C. Pickett and Clarence A. Swainson, both of Cheyenne, Wyoming and Irving I. Oxman of Denver, Colorado and oral argument by Mr. Pickett and Mr. Swainson.

POINTS OF COUNSEL FOR RESPONDENT

The burden of proof is on the defendant to show fraud and deceit. Kelly v. Smythe, 61 Wyo. 209, 157 P.2d 289; Rhinehart v. Rhinehart, 52 Wyo. 363, 75 P.2d 390.

The credability of witnesses and the weight of their testimony are committed to the trial court and the court did not abuse its discretion in refusing defendant's Motion to reopen. Willis v. Willis, 48 Wyo. 403, 49 P.2d 67; Wallis v Nauman, 61 Wyo. 231, 157 P.2d 285.

The determination of a motion to set aside a final decree of divorce and the attending issues involved are matters committed to the discretion of the trial court. If there is substantial evidence or reasonable inferences to be drawn therefrom to support the order, reviewing court will not interfere. Katz vs. Karlsson (Cal. ) 191 P.2d 541; Trujillo v. Trujillo (Cal.) 162 P.2d 640.

A charge of fraud in obtaining a judgment of divorce must, in order to sustain a bill in equity to set it aside, be established by the clearest and most satisfactory evidence. 17 A. J. 376, Sec. 459; Rivieccio v. Bothan, (Cal.) 156 P.2d 73.

RINER, Chief Justice. KIMBALL, J. and BLUME, J. concur.

OPINION

RINER, Chief Justice.

The District Court of Laramie County declined to open a default judgment in favor of the husband Sam Puterman in an action wherein the latter was plaintiff and his wife, Sarah, was defendant. Both parties are of Jewish nationality and will be hereinafter usually referred to as "plaintiff" and "defendant." The petition in the action filed September 12, 1947 alleged as a ground for the divorce "that the defendant has offered the plaintiff such indignities as to render plaintiff's condition intolerable." The judgment aforesaid was rendered upon personal service of process on the defendant and found generally in favor of the plaintiff; that the plaintiff and defendant were married in Denver, Colorado in November, 1932; and that no children have been born as the issue of said marriage. The judgment following these findings simply dissolved the bonds of matrimony between the parties and granted plaintiff an absolute divorce from defendant. This judgment contained nothing regarding alimony either temporary or permanent or concerning a settlement of the property rights of the parties between themselves or an approval thereof by the Court. It was rendered October 20, 1947.

A little over a month and a half later and at the same term of court during which it was passed and on December 9, 1947, the defendant, through counsel filed her "Motion to Open Judgment and Permit Defendant to Appear and Defend." Summarized briefly this motion sought an order opening the judgment above mentioned on certain alleged grounds described as follows: That on September 12, 1947 the summons together with a copy of the petition in the action aforesaid was handed to the defendant by a deputy sheriff of Laramie County; that defendant was a person sixty-eight years of age, unable to read, speak, or understand the English language; that when these papers were served, the defendant was living with plaintiff and they were delivered to plaintiff thereafter by the defendant; that defendant did not understand the nature of these proceedings and they were not explained to her by the plaintiff; that defendant continued to live with plaintiff as husband and wife after the service of process as stated above; that during this time the plaintiff retained the papers thus served and concealed same from the defendant; that defendant did not know that the purpose of the action was to obtain a divorce from her by the plaintiff.

That prior to the institution of the action, plaintiff took the defendant to the office of plaintiff's attorney for the purpose of executing a purported settlement and agreement; that a property settlement agreement was prepared by plaintiff's attorney and was presented to her for signature without her being then represented by counsel; that defendant was not able to read this instrument and it was not translated to her in any language she could understand; that she was told by plaintiff to place her mark upon said instrument as her signature, a copy of said instrument being attached to the motion aforesaid, made a part thereof, and marked "Exhibit A." That this agreement required that plaintiff should pay to the defendant the sum of $ 1,500 provided that a religious or Jewish divorce was commenced and completed so far as the parties could go within thirty days after the date of said agreement; that in the event such a divorce was not completed within said time, the agreement should be null and void and of no effect; that no Jewish divorce was obtained within the thirty days or at any time by said parties and by the terms of said property settlement agreement, the same became null and void prior to the time that the default decree herein was entered.

That defendant did not file an answer to plaintiff's petition as by law required and a default decree was entered by said court on the twentieth day of October, 1947 wherein no property rights of the parties were settled; that at the time these parties were married they were without money or property except certain household goods owned by the defendant; that during their married life they accumulated by their joint efforts money and property believed by defendant to be of the value of $ 75,000; that defendant in the event a divorce is granted, is entitled to have an equitable division of the property made by the court; that when the action aforesaid was commenced, the defendant was old, in poor health, inexperienced in business matters and did not understand court procedure; that plaintiff, knowing this, wrongfully and with intent to defraud, caused the action aforesaid to be instituted, kept defendant in his home while the action was pending, living together as man and wife until said decree was given; that defendant did not know that the decree in the action had been granted October 20, 1947 and continued thereafter to live with plaintiff as his wife until about November 1, 1947 when plaintiff took defendant to Denver and talked to two Jewish Rabbis thereby attempting to secure a Jewish divorce but without success; that then the defendant's children (by a former marriage) who were living in Denver were notified by these Rabbis as to what had occurred in this proceeding; that defendant continued to live with plaintiff as his wife until November 8, 1947 when plaintiff took the defendant to Denver and left her in front of the home of one of her daughters. That the within action and the property settlement was dominated and controlled by plaintiff and his counsel and defendant was not at any time represented by counsel; that plaintiff obtained said decree through fraud and deceit, and that in equity and good conscience the defendant should be given an opportunity to defend said action, to have a trial on the merits thereof and to have an equitable division of the property of the parties made in the event a divorce should be granted to either. The motion aforesaid was supported by an affidavit of the defendant attached to said motion and marked "Exhibit B."

The agreement, "Exhibit A" above mentioned dated September 10, 1947 signed by plaintiff and his wife, Sarah, by her witnessed mark, after reciting that the parties intend to live apart as they can not possibly live together as husband and wife due to differences between them and that they desire to settle all questions as to their respective property rights between themselves and are fully aware of each others financial condition, states that they agree (the plaintiff Puterman being designated as "party of the first part" and defendant Sarah as "party of the second part") as follows in paragraph numbered "1," to quote it verbatim:

"Party of the first part does hereby covenant and bind himself, his estate, his heirs, executors and administrators to pay to the second party the sum of Fifteen Hundred Dollars ($ 1,500) said sum to be paid to second party by first party...