U.S. Fidelity & Guar. Co. v. Dunbar, s. 41184

• Decision Date: 02 July 1965
• Docket Number: Nos. 41184,No. 3,41185,s. 41184,3
• Citation: 112 Ga.App. 102,143 S.E.2d 663
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY et al. v. Peggy Lou DUNBAR et al. Peggy Lou DUNBAR et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY et al
• Court: Georgia Court of Appeals

Page 663

143 S.E.2d 663

112 Ga.App. 102

UNITED STATES FIDELITY & GUARANTY COMPANY et al. v. Peggy Lou DUNBAR et al.

Peggy Lou DUNBAR et al. v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.

Nos. 41184, 41185.

Court of Appeals of Georgia, Division No. 3.

July 2, 1965.

Rehearing Denied July 20, 1965.

Syllabus by the Court

1. A judgment setting aside a divorce decree, properly obtained by one of the parties to the decree after the death of the other on the ground that the divorce was procured by fraud, will re-establish the marital status of parties on the date of the death as if the divorce decree had not been entered.

2. A judgment, setting aside a divorce decree at the same term of court that it was granted, upon the petition of the wife alleging that the husband, who was then deceased, procured the divorce by fraud, and showing that it was entered ex parte without notice to anyone representing the deceased husband, was void for the reason that the court was without power to set aside the judgment for extrinsic fraud without notice to the adverse party. Therefore, the divorce decree was in effect on the date of the deceased's death and the divorced wife and her children, who during the marriage were the deceased's stepchildren, were not entitled to workmen's compensation benefits.

3. A natural child of a deceased employee, who on the date of the natural father's death was living with and supported by a step-father, and was adopted by the step-father by a final order of adoption entered one day after the employee's death, was entitled to workmen's compensation benefits as a dependent child of the deceased.

The State Board of Workmen's Compensation awarded compensation to Ricky Pelletier as the natural son and sole beneficiary of T. W. Dunbar, a deceased employee of the City of Albany, and denied compensation to claimants who claimed to be the deceased's wife and step-children on the date of his death. These claimants and the City of Albany assign error on the judgment of the superior court affirming the board's award.

From the evidence the Board found the following facts: Ricky's mother married Pelletier in 1956 and was divorced from him in September 1959. Immediately after the divorce she married Dunbar and was divorced from him in March 1960. She married Pelletier again in May 1960. Ricky was born in August 1960. Pelletier began proceedings to adopt Ricky in October 1960 and obtained a temporary order of adoption in December 1960, and a final order of adoption on October 27, 1961. Dunbar died on October 26, 1961.

In March 1961 the deceased married the claimant whom we shall refer to as Mrs. Newton. She then had two children. The deceased obtained a dovorce from Mrs. Newton in September 1961, and she married Newton in December 1961. In March 1962 the decree of divorce between Mrs. Newton and the deceased, at the same term of court at which it was granted, was vacated and set aside, ex parte, upon Mrs. Newton's petition which alleged that the deceased had obtained the divorce from her by fraud.

Burt & Burt, Donald Rentz, Albany, for plaintiff in error.

Peek, Carr, Whaley & Blackburn, Richard D. Carr, Atlanta, B. C. Gardner, Jr., J. Neely Peacock, Jr., Albany, William T. Roberts, Montezuma, for defendant in error.

HALL, Judge.

1. The board concluded that Mrs. Newton was not entitled to compensation because the divorce was in effect on the date of the deceased's death, reasoning that the decree of divorce was voidable and had not at that time been set aside, and that Mrs. Newton's children therefore were not entitled to compensation as step-children.

It is true that extrinsic fraud in the procurement of a judgment renders the judgment voidable rather than void (Alabama Great Southern R. Co. v. Hill, 139 Ga. 224, 228, 76 S.E. 1001, 43 L.R.A.,N.S., 236); and a judgment of a court of competent jurisdiction is conclusive of the issues adjudicated between the parties until it is reversed or set aside. Code Ann. §§ 110-501, 110-708; Smith v. Robinson, 214 Ga. 835, 108 S.E.2d 317. The question of law upon which the board based its denial of compensation to Mrs. Newton and her children, has not been decided by the appellate courts of Georgia: Once a fraudulent judgment of divorce has been set aside, are the status and rights of the parties affected retroactively to the date of the judgment? Elsewhere it has been held that where a judgment is vacated or set aside it is entirely destroyed and rights of the parties are left as though no judgment had ever been entered. 49 C.J.S. Judgments § 306, p. 557. And a judgment vacating a fraudulent divorce decree re-establishes the relation of husband and wife as if the decree of divorce had not been entered. Vaughan v. Vaughan, 258 Ala. 336, 62 S.2d 466, 470; 27 A C.J.S. Divorce § 172, pp. 715, 716; 17 Am.Jur. 590, § 490.

While following the death of a spouse the question of the effect of a fraudulent divorce on the parties' marital status becomes moot, an action to set aside the fraudulent divorce can be maintained following the death if it appears that the divorce decree or the subsequent action to set it aside involved some property right in which the surviving spouse is beneficially interested. Rivieccio v. Bothan, 27 Cal.2d 621, 165 P.2d 677, 680; 17 Am.Jur. 591, 615, 520; Anno. 22 A.L.R.2d 1312, 1323; cf. Waldor v. Waldor, 217 Ga. 496, 499, 123 S.E.2d 660. The Supreme Court of California in an opinion written by Justice Traynor in the Rivieccio case, supra, recognized a workmen's compensation death benefit as a property interest within this rule.

The Court of Appeals of Indiana has held that a workmen's compensation claimant was not the wife of a deceased employee at the time of his death because a divorce decree between the parties set aside following his death was in full force and effect until set aside. Deremiah v. Powers-Thompson Construction Co., 125 Ind.App. 662, 670, 129 N.E.2d 425. To follow this decision would not, in our opinion, bring about the better result in the majority of cases.

We hold that the judgment setting aside Mrs. Newton's divorce from the deceased had it not been void for the reasons hereinafter discussed, would have re-established her status as his wife on the date of his death. Accordingly, the board's conclusion that the divorce was in effect on the date of the deceased's death was based on a legal theory that we decide to be erroneous.

2. The record in this case shows that the trial court's judgment setting aside the divorce decree was granted ex parte at the same term of court at which the divorce was granted, upon the petition of Mrs. Newton alleging that Dunbar procured the divorce by fraud. Dunbar was deceased at the time the petition to set aside was filed, and no notice of the petition or judgment setting aside the divorce was given to anyone representing him as the adverse party to the divorce decree. A motion to set aside a judgment for extrinsic fraud need not be made during the term at which the judgment was rendered, but may be made at any time within the statute of limitation. Code §§ 110-703, 110-710; Young v. Young, 188 Ga. 29, 2 S.E.2d 622. However, notice to the adverse party of a petition or motion to set aside a judgment for defects not apparent on the face of the record which invalidate the judgment is required, even when the petition is brought within the same term of court that the judgment was entered. Baker v. McCord, 173 Ga. 819, 162 S.E. 110; accord Dugan v. McGlann, 60 Ga. 353; Union Compress Co. v. A. Leffler & Son, 122 Ga. 640, 642, 50 S.E. 483; Ford v. Clark, 129 Ga. 292, 294, 58 S.E. 818; Worthy v. Farmers' Life Confederation, 144 Ga. 512, 513, 87 S.E. 667; Roberts v. Roberts, 150 Ga. 757, 105 S.E. 448; Citizens' & Contractors' Bank v. Maddox, 175 Ga. 779, 784, 166 S.E. 227; Plunkett v. Neal, 201 Ga. 752, 41 S.E.2d 157; Johnson v. Gunder, 210 Ga. 419, 421, 80 S.E.2d 327; Benford v. Shiver, 13 Ga.App. 135, 78 S.E. 860; Longshore v. Collier, 37 Ga.App. 450, 140 S.E. 636.

There are opinions of the appellate courts stating that during the term of court at which judgments are made the court has discretionary power to set them aside without notice to anyone. Review of such opinions reveals that the defect in the judgment attacked was one invalidating the judgment that appeared on the face of the record (Waldor v. Waldor, 217 Ga. 496, 497, 123 S.E.2d 660), or an improvident determination by the court of a question '[not] affecting the merits of any portion of the case' (Jones v. Garage Equipment Co., 16 Ga.App. 596, 598, 85 S.E. 940; Athens Apartment Corp. v. Hill, 156 Ga. 437, 119 S.E. 631; Smith v. Armour Fertilizer Works, 18 Ga.App. 521, 89 S.E. 1087; or that notice to the adverse party was in fact given in the case (Dover v. Dover, 205 Ga. 241, 53 S.E.2d 492; Shivers v. Shivers, 206 Ga. 552, 57 S.E.2d 660; Jowers & Son v. Kirkpatrick Hdw. Co., 21 Ga.App. 751, 94 S.E. 1044). Cases in which the court has power to set aside judgments during the term without notice to the adverse party do not include cases in which fraud, extrinsic to the record, is alleged as the ground for setting aside the judgment.

The judgment setting aside the divorce decree between Dunbar and Mrs. Newton was void for the reason that the adverse party to the petition to set aside the judgment was not given notice of nor heard in the proceeding. Code § 110-709. The board's conclusion that the divorce was in effect on the date of the deceased's death and its denial of compensation to Mrs. Newton and her two children, upon the evidence before it, were correct.

3. The appellants contend that Ricky Dunbar was not a dependent of the deceased, his natural father, on the date of the accident because he was in fact dependent on Pelletier, then his step-father, who had obtained an interlocutory order to adopt him.

The section of the Workmen's Compensation Act providing for death benefits to dependents of a deceased employee...