Reppert v. Reppert

• Court: Iowa Supreme Court
• Writing for the Court: DE GRAFF
• Citation: Reppert v. Reppert, 214 Iowa 17, 241 N.W. 487 (Iowa 1932)
• Decision Date: 08 March 1932
• Docket Number: No. 40932.,40932.
• Parties: REPPERT v. REPPERT.

214 Iowa 17

241 N.W. 487

REPPERT

v.REPPERT.

No. 40932.

Supreme Court of Iowa.

March 8, 1932.

Appeal from District Court, Polk County; Joseph E. Meyer, Judge.

Action in equity commenced by plaintiff (appellee) for judgment and decree against the defendant (appellant) predicated on four counts of plaintiff's petition, presently noted. The trial court entered a decree in favor of the plaintiff and against the defendant, who appeals.

Reversed.Parrish, Cohen, Guthrie & Watters, of Des Moines, for appellant.

L. S. Forrest, of Des Moines, for appellee.

DE GRAFF, J.

The original petition filed in this case was subject to motion of the defendant to divide the petition into counts, which motion was sustained, and in compliance with the order entered, an amended and substituted petition was filed by the plaintiff in four counts. It is therefore necessary to understand the plaintiff's claims and the issues in this cause as set forth in the four counts in the substituted petition.

It is undisputed that the plaintiff (Lola Reppert) and defendant (Gus Reppert) intermarried on the 24th day of September, 1928, and that a decree of divorce on the petition of the defendant herein was entered by the district court in and for Polk county on May 7, 1929, in which decree it is recited that the court being fully advised in the premises finds and determines “that the equities of this cause are with the plaintiff (defendant in this cause) and that he is entitled to an absolute decree of divorce from the defendant” (plaintiff in the instant cause), and further decreed that the plaintiff (Gus Reppert) pay to the defendant (Lola Reppert) “the sum of $150 per month for a period of 12 months as alimony” for the support of the defendant Lola Reppert in said divorce action. The record discloses that the defendant in the divorce action received and accepted her monthly alimony for a period of twelve months for her support as per the decree of divorce entered of record. It is now the contention and claim of Lola Reppert, the plaintiff in the instant case, that she was the wife of the instant defendant prior to the divorce action and has been the wife of said defendant ever since, regardless of the decree of divorce entered as aforesaid. In the light of her present claims under her substituted petition in the instant case, we deem it necessary to analyze the four counts of her amended and substituted petition filed in the instant case on the 2d day of January, 1931.

I. Count I of her petition is based on the theory that she was and is the lawful wife of the defendant, and the prayer in count I is that the divorce decree heretofore noted be canceled, declared void, and held for naught.

The record discloses that the plaintiff, Gus Reppert, in said divorce action caused to be served upon the defendant, Lola Reppert, in said divorce action, an original notice which she accepted, and acknowledged receipt of a copy thereof. In her acceptance of service of said notice she signed and wrote thereon the following: “And do hereby enter my appearance in the above cause and consent that said cause may come on for hearing at any time convenient to the court during the May 1929 term thereof; and I do hereby waive the reporting of said proceedings.” This was all done in Des Moines township, Polk county, Iowa, the 25th day of April, 1929.

It is alleged in count I of her substituted petition that the notice aforesaid to her was a part of an oral agreement entered into between plaintiff and defendant; that the defendant herein should obtain a decree of divorce against the plaintiff merely as “a formal matter,” and that the divorce should make no difference between them; that the instant plaintiff in signing said acceptance did not know the import thereof and relied upon the representation of the defendant and was lulled into security and thereby prevented from seeking legal advice or in appearing in said action; that they remained as husband and wife; that during said continuation of said relation a child was born to them March 25, 1930; that during said relationship, especially since the birth of the child aforesaid, the defendant Gus Reppert has been guilty of such cruel and inhuman treatment toward the plaintiff as to endanger her health, and “therefore imperil her life.”

[1][2] It may be observed first that the burden of proof to sustain the plaintiff's allegation was upon the plaintiff. The record discloses that the plaintiff is college trained and that she majored while in college in English. It may not therefore be said that plaintiff did not understand the English language and the full import of the notice served on her at the time she accepted service thereof in the manner heretofore stated. There is no basis, in the light of the evidence, for plaintiff to now claim that the divorce decree was entered by the court simply as “a formal matter.” There was a specific denial in the answer of the defendant that such an agreement as claimed by the plaintiff was ever entered into, and the trial court so found. It is said in the argument of plaintiff that on the second day of the May term, when a divorce decree was signed by the court pursuant to the notice served, “there was no testimony taken and there was no reporter's transcript ever filed in the Clerk's office showing that any trial whatever was had.” It surely is not intended by plaintiff in making such a statement to charge the district court, which granted the divorce in question, with participation in any fraud or collusion in granting the decree of divorce between the parties.

The petition of the plaintiff does not make a claim for the establishment of the paternity of her child, except in so far as that problem arises in connection with her claim of common-law marriage and no previous divorce. The essence of her prayer in count I is for the cancellation of the divorce decree. The trial court properly held that the decree was legal and valid and that there was no common-law marriage between the plaintiff and defendant.

[3][4] A divorce decree, even though obtained by fraud, is voidable and not void. A divorce decree obtained through alleged collusion cannot be attacked on that ground by either party. In the divorce action the district court in and for Polk county, where both parties resided, had jurisdiction of the subject-matter including the divorce, alimony, etc. Section 10468, Code 1927. In the divorce action the trial court proceeded to a decree and necessarily and actually found that it had jurisdiction of both the parties and the subject-matter involved. The plaintiff, Gus Reppert, in said action, therefore, by himself and by some corroborating witnesses must have satisfied the court that both of the parties at the time were residents of Polk county. The court could not, under this record, have found otherwise. It is also undisputed that permanent alimony was decreed in favor of the defendant against the plaintiff, Gus Reppert. In the instant action she seeks to avoid this situation by asserting that the decree was procured by fraud and collusion.

[5] The record shows that the plaintiff in the divorce action faithfully carried out the provisions of the Polk county decree. He has made all payments to her as therein provided and she has accepted same, and by so doing she has estopped herself and she cannot now be heard to gainsay the validity of the Polk county decree. Estoppel was pleaded by the defendant in the instant case. In Ellis v. White et al., 61 Iowa, 644, 17 N. W. 28, the determination of the case rests upon the validity of the divorce proceedings and it was held that, if the court had jurisdiction, the decree cut off the plaintiff's right, which in that case was the right of plaintiff to her distributive share or dower. It is said in Newcomer v. Newcomer, 199 Iowa, 290, loc. cit. 294, 201 N. W. 579, 581: “Again, plaintiff alleges with reference to the Tama county proceeding, ‘that all of the same was done with the assistance and connivance of the defendant at his instance, suggestion, and request’; thus asserting that the decree was procured through the collusion between appellant and appellee, and by a commission of fraud on the Tama county court. That the courts will not countenance an attack upon such a decree by either party is fully elucidated in Ferry v. Ferry, 9 Wash. 239, 37 P. 431, where it states: ‘It is enough to say that the authorities are decidedly against the proposition, and that courts cannot be used in that way.’ [Citing cases.] * * * Her proceedings herein, therefore, do not appeal to the conscience of the chancellor, as she has no equity whatever in her case.”

[6] It is quite the universal rule of law that an attack upon a judgment upon the ground of fraud must be made within a reasonable time after the discovery of the fraud. This is the well-recognized legal principle in Iowa. “Generally speaking, the fraud which renders a judgment void, as distinguished from voidable, goes to the method of acquiring jurisdiction.” Mahoney v. State Ins. Co., 133 Iowa, 570, loc. cit. 577, 110 N. W. 1041, 1043, 9 L. R. A. (N. S.) 490. In the case at bar the plaintiff by her own admissions must have known, at the time of her acceptance of the original notice, what she claims to now know, and upon which the prayer in count I is predicated. It must be remembered that the instant action is not a reopening of the original divorce action, but is an attempt in an original proceeding to set aside and cancel the decree of divorce. There is no suggestion anywhere in the case at bar, either in pleadings or proof, that the jurisdiction of the Polk county court was fraudulently obtained, but even if there had been collusion between plaintiff and defendant in the procurement of the divorce decree, the instant plaintiff must be viewed as a party to the fraud upon the court. She failed to come into equity with clean hands, and it is well settled that a party to a collusive...