Stafford v. Stafford

• Decision Date: 07 June 1947
• Docket Number: 36715.
• Citation: 163 Kan. 162,181 P.2d 491
• Parties: STAFFORD v. STAFFORD.
• Court: Kansas Supreme Court

181 P.2d 491

163 Kan. 162

STAFFORD v. STAFFORD.

No. 36715.

Supreme Court of Kansas

June 7, 1947

Appeal from District Court, Sedgwick County; McCormick, Judge.

Proceeding by Virginia J. Stafford against Samuel Thomas Stafford to set aside a decree of divorce. From an order setting aside the decree, the defendant appeals.

Syllabus by the Court

1. In a proceeding brought pursuant to G.S.1935, 60-3007, Fourth, to vacate a decree in a divorce action on the ground of fraud the fraud relied on must be extrinsic fraud, as distinguished from intrinsic fraud.

2. In such a proceeding as that described in the first paragraph of this syllabus, the record is examined and it is held that as tested by a demurrer to the evidence the conduct of defendant as testified to by plaintiff amounted to extrinsic fraud sufficient to warrant the trial court in vacating the divorce decree.

3. In such a proceeding as that described in the first paragraph of this syllabus, the record is examined and it is held that the petition of plaintiff contained sufficient allegations of a valid defense to the original divorce action.

4. In such a proceeding as that described in the first paragraph of this syllabus, there was substantial evidence to sustain the allegations to the effect that plaintiff had a valid defense to the divorce action.

5. In such a proceeding as that described in the first paragraph of this syllabus, a general finding of the trial court in favor of the plaintiff and against the defendant is tantamount to a finding for plaintiff on all properly pleaded issues of fact.

6. Section 60-3013 of G.S.1935 provides that in a proceeding such as that described in the first paragraph of this syllabus, no judgment shall be vacated until it is adjudged that there is a valid defense to the action-- Held, that a finding in favor of plaintiff on substantial evidence and an order vacating the former decree constituted an adjudication that there was a valid defense to the divorce action.

John Jay Darrah and Arnold C. Todd, both of Wichita (Dale Kidwell Robert B. Morton and D. Emmett Foley, all of Wichita, on the brief), for appellant.

Manford Holly, of Wichita (Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch and Dale M. Stucky, all of Wichita, on the brief), for appellee.

SMITH, Justice.

This was a proceeding, filed pursuant to the provisions of G.S.1935, 60-3007, Fourth et seq., to set aside a decree of divorce.

The petitioner was the wife and defendant in the divorce action. An order was entered setting aside the divorce decree. The original plaintiff in the divorce action has appealed.

The briefs refer to the wife who filed the present petition to set aside the divorce decree as the plaintiff and the husband who is the appellant as the defendant. To avoid confusion the parties will be so referred to in this opinion.

Plaintiff's amended petition alleged the marriage of the plaintiff and defendant in 1939, their residence in New York and the removal of defendant to Wichita; that about January 15, 1945, defendant filed an action against the plaintiff in Sedgwick county for divorce and obtained a decree; that defendant for the purpose of obtaining plaintiff's consent to the decree, fraudulently represented to plaintiff that the action was instituted for the purpose of clearing up a violation of the New York law prohibiting his marriage to her under a divorce decree previously entered; that to lull plaintiff into security defendant cohabited with plaintiff during her stay in Wichita, with the result that she was led to believe that if she opposed him in the divorce case the apparently happy relationship then existing would be forever destroyed; that on the first day of the trial and at the close of defendant's evidence, the divorce case at the request of the wife's attorney was adjourned to give her an opportunity to be heard; that defendant instructed plaintiff to have prepared for his signature a petition for an order in the New York court authorizing their remarriage and plaintiff was induced to return to their home in New York; that by these acts plaintiff was lulled into security and induced to have no further counsel with her attorney and to introduce no evidence, with the result that on March 29, 1945, the decree of divorce was entered; that plaintiff was not informed as to the full purport of defendant's testimony at the trial until after the expiration of the term in which the decree was entered; that the allegations in the divorce petition were false in that defendant was not a resident of Kansas and that no valid ground for divorce in fact existed; that the testimony of defendant and his corroborating witness was false and any differences that existed between the opposing parties had been condoned by continued cohabitation; that after the expiration of the time for an appeal and after the close of the term in which the decree was entered defendant informed plaintiff that it had always been his intention to let the decree stand and he had made his representations solely for the purpose of obtaining a decree; that on account of these things plaintiff had been deprived of substantial property rights and the decree should be set aside.

After defendant's demurrer to the petition was overruled he answered the plaintiff had come to Wichita for the purpose of having a reconciliation; that when she discovered she could not do so she asked that the hearing on the divorce be taken up while she was present; that it was taken up on March 27, while she was in the courtroom and that at the completion of defendant's evidence the court stopped the trial and instructed the reporter to let the record show that the present plaintiff was in the courtroom; that counsel conferred with her and requested the court to continue the trial until March 29 to give her a chance to decide whether or not she wished to contest it; that shortly before 2 o'clock on March 29, counsel for plaintiff advised counsel for defendant that she did not desire to contest the action and stated that he would approve the journal entry of divorce; that in response to this action the court did render judgment for divorce in favor of defendant here according to the terms of the journal entry; that on March 27 before the judgment of the court was rendered Mrs. Stafford advised counsel for defendant that his client claimed that defendant was going to remarry her after the divorce had been granted; that defendant thereupon advised counsel for plaintiff that he did not intend to remarry plaintiff and that plaintiff was advised to that effect; that the facts of which plaintiff complained should have been presented to the court or to her attorney during the pendency of the action; that the allegations amounted to an agreement to suppress evidence, which constituted collusion; that plaintiff had accepted the money awarded to her under the decree and was, therefore, estopped from contesting its validity.

The trial court in this proceeding found generally for the plaintiff and against the defendant and that the judgment should be set aside because of extrinsic fraud practiced by the defendant, as shown generally by the evidence. The court also made somewhat extended remarks in the record at the time of announcing its decision. In these remarks the court said, amongst other things:

'The fact that after the continuance on the 27th for two days, to the 29th, hating her, as you say 'wouldn't sleep in the same bed with her, wouldn't touch her with a 10-foot pole' how obnoxious plaintiff was, yet, right in the face of it he takes her on the 29th to Hutchinson. What does that mean, Mr. Holly? He got her away from you, away from Wichita and away from the defense by a ruse * * *.

'Now, that getting her out of the town, out of touch with her attorney, in my judgment, constitutes extrinsic fraud on the Court and on the defendant. Unsuspecting as she was, she was glad to go on the ride to Hutchinson for the purpose of the advantage of pressing her claims for reconciliation, and that was her whole object, as she has testified and, it accomplished the result of leaving the Court without any defensive evidence.'

The defendant filed a motion for a new trial on the ground that the judgment was contrary to the evidence and contrary to law; that the court erred in overruling the demurrer to plaintiff's first amended petition and in overruling defendant's demurrer to plaintiff's evidence and in overruling defendant's motion for judgment on plaintiff's opening statement; that the court erred in rendering judgment for the plaintiff because the evidence showed that the plaintiff had every opportunity to defend the action; that she was represented by counsel of her own choosing; that there was no fraud of any kind practiced upon plaintiff by defendant; that the action complained of by the plaintiff did not constitute actionable fraud; that collusion was inherent in plaintiff's actions; that a collusive agreement was made between plaintiff and defendant to suppress evidence; that no coercion or duress was practiced upon the plaintiff, which would warrant vacation of the divorce decree; that the judgment was rendered under influence of passion and prejudice; that the rulings of the court were erroneous; that there was misconduct of the plaintiff, the prevailing party. This motion was overruled.

The defendant's specifications of error are that the district court erred in overruling defendant's demurrer to plaintiff's amended petition; in overruling the defendant's motion for judgment on the plaintiff's opening statement; in overruling defendant's demurrer to the evidence at the close of plaintiff's testimony; in rendering judgment for the plaintiff upon the evidence presented, and...