Scoufos v. Fuller

• Decision Date: 21 December 1954
• Docket Number: 36052,Nos. 36051,s. 36051
• Citation: 1954 OK 363,280 P.2d 720
• Parties: Harry SCOUFOS, Administrator of the Estate of Buster Chisholm, Deceased, et al., Plaintiffs in Error, v. J. D. FULLER, an Incompetent, et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 720

280 P.2d 720

1954 OK 363

Harry SCOUFOS, Administrator of the Estate of Buster Chisholm, Deceased, et al., Plaintiffs in Error, v. J. D. FULLER, an Incompetent, et al., Defendants in Error.

Nos. 36051, 36052.

Supreme Court of Oklahoma.

Dec. 21, 1954.

Rehearing Denied March 8, 1955.

Syllabus by the Court.

1. Where a competent person files a divorce action, but is subsequently adjudicated an incompetent and guardian is appointed, the divorce action does not abate but may be maintained by the guardian. A decree of divorce granted thereafter is not void on the face of the record and may not be vacated at the instance of the party obtaining it, after he has been judicially determined to be insane.

2. A void judgment is one that is void on the face of the record or judgment roll, and a judgment is not void on the face of the record if extrinsic evidence is necessary to establish the invalidity.

3. As a general rule a divorce decree may not be vacated at the instance of the party obtaining it after the death of the party against whom the decree was rendered.

4. If it be necessary to resort to extrinsic evidence to show the invalidity of a judgment because of irregularity in obtaining same, the proceedings to vacate must be brought within three years following the rendition thereof as provided in 12 O.S.1951 §§ 1031 and 1038.

Appeal from the District Court of Okfuskee County, Oklahoma; Hon. Jess I. Miracle, Judge.

Appeal by the administrator of the estate of Buster Chisholm, deceased, from a decree vacating a divorce decree wherein J. D. Fuller, an incompetent, was granted a divorce from Martha Jackson Fuller, who later married Buster Chisholm, and holding that J. D. Fuller and not Buster Chisholm was the surviving husband of Martha Jackson Chisholm and also an appeal by the same administrator from a decree of the District Court of Okfuskee County on appeal from the County Court admitting to probate the will of Martha Jackson Chisholm, holding that J. D. Fuller and not Buster Chisholm was the surviving husband and 'forced' heir of Martha Jackson Chisholm, deceased. Some of the heirs of Buster Chisholm intervened but do not take issue with the decree vacating the divorce judgment.

Both judgments reversed in so far as they hold that J. D. Fuller is the surviving husband of Martha Jackson Chisholm, deceased with directions to enter judgment holding that Buster Chisholm was the surviving husband of Martha Jackson Chisholm, deceased, and that J. D. Fuller is not entitled to any interest in her estate.

Clem H. Stephenson, Wewoka, and T. L. Gibson, Muskogee, for plaintiffs in error.

Tom Greer, J. A. Patterson and Buck Cartwright, Wewoka, and Clyde F. Ross, Okemah, for defendants in error.

HALLEY, Chief Justice.

A statement of the principal facts from which these actions arose appears desirable for an understanding of the issues involved in this appeal.

July 19, 1939, J. D. Fuller and Martha Jackson, a full-blood restricted Indian, were married.

On February 16, 1940, J. D. Fuller filed a petition for divorce and $50,000 alimony in the District Court of Okfuskee County, alleging serious grounds for divorce and that Martha had about $200,000 on deposit with the Department of Interior and other property and praying for $50,000 alimony. Martha filed an answer and cross-petition praying for a divorce.

About 10 days after J. D. Fuller had filed his petition for a divorce he suffered a serious head injury and was confined to a hospital for about five weeks, the first two weeks of which he was in a state of coma.

After J. D. Fuller was released from the hospital he went to the home of his father, A. N. Fuller, in Johnston County and on May 23, 1940, the County Court of that County appointed A. N. Fuller the guardian of J. D. Fuller as an incompetent. On June 12, 1940, the guardian filed an amended petition in the divorce action praying for judgment for $50,000 alimony, alleging that he was penniless, afflicted with disease and unable to earn a living. The amended petition did not contain a prayer for divorce, but was amended at the time it was heard by praying for a divorce. The court appointed a guardian ad litem who adopted the pleading of the guardian of J. D. Fuller as an incompetent.

On July 17, 1940, the divorce action was tried and J. D. Fuller was granted a divorce and support money in the sum of $10,000. This money judgment was later settled for $5,000 with the approval of the County Court appointing a guardian for J. D. Fuller, an incompetent.

January 29, 1942, the County Court of Atoka County adjudged J. D. Fuller to be insane and committed him to the State Hospital at Vinita from which he was released April 12, 1949, but he has never been restored to competency.

October 17, 1944, some four years after the divorce decree was entered, Martha married Buster Chisholm, with whom she lived as his wife until her death on July 9, 1949. Buster Chisholm filed an application to probate her will, but he died July 21, 1949 and Harry Scoufos was appointed administrator of his estate.

L. V. Hollis petitioned to probate a later will of Martha's and the guardian of J. D. Fuller filed objections to the probate of Martha's will and claimed that he was the surviving husband of Martha. L. V. Hollis answered that J. D. Fuller had been divorced from Martha in 1940. The County Court admitted the will to probate and denied the claim of J. D. Fuller. This judgment was not appealed from and became final, but the only real issue involved was the factum of the will.

L. V. Hollis, as executor of the will of Martha Jackson Chisholm filed a final report and petition for determination of heirs under Martha.

May 2, 1951, the guardian of J. D. Fuller filed a petition to vacate the divorce decree of July 27, 1940, more than 10 years after it was rendered.

The guardian of J. D. Fuller filed an answer to the petition to determine the heirs of Martha and again set up that J. D. Fuller was her surviving husband. The County Court held that the divorce decree of 1940 was void on the face of the record and that J. D. Fuller was the surviving husband and 'forced' heir of Martha.

The administrator of the estate for Buster Chisholm appealed to the District Court and on November 24, 1952, the District Court held the divorce decree void on the face of the record and vacated the divorce decree.

The findings in the will case that J. D. Fuller was the surviving husband of Martha and the decree holding that the divorce decree was invalid necessarily resulted to the same effect, which is, that J. D. Fuller was the husband of Martha after their marriage in 1939 and is now her surviving husband and heir because there had been no valid divorce decree dissolving their marriage.

It is clear that unless the divorce decree is void on the face of the record, or judgment roll, it cannot be attacked after it has remained unchallenged for record for more than 10 years.

Section 1031, 12 O.S.1951, sets out the power of a District Court to vacate or modify its judgments. Section 1038, 12 O.S.1951, provides limitations controlling when judgments may be vacated or modified. The last sentence of this section is as follows:

'A void judgment may be vacated at any time, on motion of a party, or any person affected thereby.'

This Court has held in numerous cases that in order for a judgment to be void as provided in the Statute just quoted, it must be void on the face of the record, and that extrinsic evidence is not admissible to show judgment is void on the face of the record.

In Steiner v. Smith, 115 Okl. 205, 242 P. 207, 209, it was said in the body of the opinion:

'We think the rule is too well established to require the citation of authorities that, where the judgment is sought to be vacated on the grounds that it is void upon its face, the defects must be patent on the face of the record and no outside testimony is permissible to show its invalidity.'

Harry Scoufos, as administrator of the estate of Buster Chisholm, deceased, has appealed and contends that the divorce decree is valid; that J. D. Fuller is estopped from attacking a decree which he obtained; that the court erred in admitting extrinsic evidence; that the judgment of the County Court in the probate case in holding that J. D. Fuller was not Martha's husband is res judicata; that J. D. Fuller did not overcome the presumption that the marriage of J. D. Fuller and Martha was legally dissolved; and, that Buster Chisholm inherited one-half of her property, except restricted lands.

Is the divorce decree void on the face of the record? The rule as to what defect must appear on the face of the record in order to render a decree void and to subject it to attack at any time is aptly set out in State ex rel. Commissioners of Land Office v. Keller, Okl., 264 P.2d 742, where it is announced that for a judgment to be void on the face of the record it must appear on the face of the judgment roll or record, that the court rendering the judgment lacked (1) jurisdiction over the parties, (2) jurisdiction over the subject matter, or (3)...