Wellington v. Wellington

• Decision Date: 11 December 1973
• Docket Number: No. 2--1272A142,2--1272A142
• Citation: 158 Ind.App. 649,304 N.E.2d 347
• Parties: James WELLINGTON, Defendant-Appellant, v. Joyce WELLINGTON, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 347

304 N.E.2d 347

158 Ind.App. 649

James WELLINGTON, Defendant-Appellant, v. Joyce WELLINGTON, Plaintiff-Appellee.

No. 2--1272A142.

Court of Appeals of Indiana, Second District.

Dec. 11, 1973.

Rehearing Denied Jan. 8, 1974.

Mehl, Mehl & Beeson, Goshen, Frank E. Spencer, Indianapolis, for defendant-appellant.

Joseph A. Noel, of Noel, Noel, Williams & Scruggs, Kokomo, for plaintiff-appellee.

SULLIVAN, Judge.

Appellee Mrs. Wellington was granted a divorce from appellant Dr. Wellington on July 9, 1970. The decree of divorce contained a provision that Dr. Wellington pay alimony in the sum of $345,000 in monthly installments of $1250.00, together with child support in the sum of Two Hundred Dollars ($200.00) per month for the two minor children of the parties. No appeal was taken by either party from that judgment. The alimony and child support were negotiated between the parties with the aid of their respective lawyers. The Miami Circuit Court granted the divorce and entered the prepared written decree which had been approved by Dr. Wellington in person as evidenced by his signature on the decree and Mrs. Wellington by her attorney. Neither Dr. Wellington nor his attorney attended the divorce hearing.

On July 8, 1971, one day short of a year after the decree was entered, Dr. Wellington filed a motion to vacate the alimony provision of the decree. The motion alleged that defendant's default and the judgment entered thereon were procured by 'duress and misrepresentation.' Dr. Wellington claimed that during the settlement negotiations, he agreed to the terms of the decree in consideration of Mrs. Wellington's promise that she would be a better mother to the two children, and in fear that she might otherwise take the children and flee to another area.

Commencing in October of 1971, Dr. Wellington refused to pay the alimony installments.

On December 10, 1971 Mrs. Wellington filed an affidavit for a contempt citation seeking to invoke the aid of the Miami Circuit Court in enforcing its decree so far as the alimony payments were concerned.

On December 20, 1971, the Miami Circuit Court heard evidence on Dr. Wellington's motion and Mrs. Wellington's petition. The order and judgment of the court from which this appeal is taken was as follows:

'Parties appear in person and by counsel. Evidence is heard and concluded. Court now find for the Plaintiff and against the Defendant on Defendant's Motion to Vacate and Set Aside Previous Judgment heretofore entered on July 9, 1970 and the Court further finds that the Plaintiff committed no fraud upon the Defendant. The Court further finds that on Plaintiff's Citation of Contempt of Court, for the Plaintiff and against the Defendant and that the Defendant is in indirect contempt of this Court for failure to pay alimony as heretofore ordered by the Court on July 9, 1970. It is therefore ordered, adjudged and decreed by the Court that the order heretofore made by the Court, July 9, 1970, ordering the Defendant to pay alimony in installment payments, is in full force and effect and that the Defendant is ordered to pay back alimony payments forthwith and to keep current on alimony payments in the future. Punishment against the Defendant for contempt of Court is withheld pending the Appeal of this cause provided that the Defendant file within (15) days of this entry, his Motion to Correct Errors and perfecting his Appeal timely in accordance with the Rules of the Indiana Supreme Court.'

It is appellant's contention that the court erred in refusing to vacate the alimony provision of the divorce decree and that further error was committed in utilization of the contempt powers of the court to enforce such alimony provision.

I

THE COURT BELOW CORRECTLY DENIED APPELLANT'S MOTION TO

VACATE THE ALIMONY PROVISION OF THE DIVORCE DECREE

It is appellant's contention that the default divorce judgment which included the alimony provision was procured by fraud and duress in that his wife falsely represented to appellant that in the future she would give better care to their minor children and that she had threatened to take the children and 'disappear'. While the uncontradicted evidence submitted by appellant upon his Motion to Vacate might give rise to a strong inference that his wife, both before and after the divorce, had not exhibited ideal or even proper motherly care for the children, such evidence would seem more in keeping with a Petition for Modification of the custody portion of the decree. It appears to have little, if any, legal relevance to the propriety of the alimony provision of the divorce decree unless Mrs. Wellington's 'promise' to devote more attention to the children constitutes fraud.

It is well settled that in a proceeding to set aside a default judgment, the burden of proof is upon the party seeking relief to establish the fraud alleged in his petition or motion to vacate. Schepp v. Pogue (1968) 142 Ind.App. 341, 234 N.E.2d 874. The essential elements of proof with respect to vacating an agreed settlement of litigation are not different from the elements necessary to establish any other action founded upon fraud. Farm Bureau Mutual Insurance Co. v. Seal (1962) 134 Ind.App. 269, 179 N.E.2d 760. As we recently noted in Grissom v. Moran (1972 Ind.App.) 290 N.E.2d 119, 123:

'The essential elements of actionable fraud are a material representation of past or existing facts, which representations are false, made with knowledge (scienter) or reckless ignorance of this falsity, which cause a reliance upon these representations, to the detriment of the person so relying.'

The key to the matter before us is whether the wife's promise constituted a material representation of an existing fact for as stated in Martin v. Grutka (1972 Ind.App.) 278 N.E.2d 586, 591:

'It is patently clear under Indiana law that representations upon which an action for fraud can be maintained must be of alleged existing facts, and not upon promises to be performed in the future.'

Appellant relies upon Basye v. Basye (1899) 152 Ind. 172, 175, 52 N.E. 797 wherein the court, in setting aside a deed from the husband to the wife, held:

'In this case the false representations were made concerning a present fact. Representations may consist in acts as well as words. When appellee caressed her husband, after a long period of coldness, she made a solemn affirmation of present fact just as much as when she told him in words that she loved him and begged his forgiveness of her past indifference. When she caressed him and promised to be a good wife in the future, her promise as well as her kiss was a representation of present fact. A present state of mind is a present fact. Bigelow on Fraud (1888 ed.), 483--4.

Appellee owed appellant the utmost good faith and frankness. There existed between them a relation of special confidence and trust. The principle, also, applies here that whenever the confidence resulting from such a relationship is abused equity will interfere.' (Emphasis supplied)

To the same effect is Sylvester v. Sylvester (1958) 129 Ind.App. 168, 54 N.E.2d 747.

The emphasized portion of the above language points up the controlling distinction between the relationship of the husband and wife in the Basye case and that of the parties to this litigation.

In Sachs v. Blewett (1933) 206 Ind. 151, 185 N.E. 856, 188 N.E. 674, our Supreme Court analyzed, distinguished and placed in proper perspective the Basye decision. In making that distinction, the court stated:

'It is not alleged that there was any relationship of trust or confidence between the parties, nor are any circumstances shown which would entitle the appellee to place more than ordinary reliance in the promises of the appellants.'

At the time of the representations here involved, the parties were adversaries and were negotiating with the help of their respective lawyers, a settlement to the dispute rather than a reconciliation or other transaction dependent upon trust and confidence. Accordingly, we hold that the well established principles of law with respect to fraud are applicable here and that Mrs. Wellington's promises as to future performance do not constitute fraudulent representations.

We further hold that the court below was justified in finding that the wife's 'promise' to be a better mother were mere statements of a nebulous intention to try to do better and did not justify appellant's possible reliance thereon as a factual representation certain or probable of accomplishment in the future. There is no evidence that when the representation was made, Mrs. Wellington did not in fact intend to be a better mother. Her later failure, if it be a fact, does not compel a conclusion by the trial court that she falsely and intentionally misrepresented her intention. Smart and Perry Ford Sales, Inc. v. Weaver (1971) Ind.App., 274 N.E.2d 718.

Appellant's argument concerning the 'duress' which caused his acquiescence in the default decree fails for the reasons heretofore stated. Additionally this argument, as well as the contention with regard to the wife's 'fraudulent misrepresentations', ignores the fact that appellant was fully conversant with his current and prospective financial state ¹ and with the terms of the divorce decree and the fact that he specifically approved those terms including the total amount of alimony to be paid and the periodic installments required to satisfy the obligation. See Anno. 5 ALR 823 (validity of separation agreements as affected by fraud or coercion).

II

CONTEMPT POWERS OF COURT IMPROPERLY USED TO ENFORCE ALIMONY

PROVISIONS OF DIVORCE DECREE

(A) Alimony Award May Constitute Provision For Maintenance As Well As A Method For Distribution Of Property Between Parties

Alimony in Indiana has seemingly become a catchall concept embracing all matters between husband and wife in a divorce proceeding except dissolution of the marital relationship itself and provision for custody and support of...