Womack v. Womack

• Decision Date: 10 December 1904
• Parties: WOMACK v. WOMACK
• Court: Arkansas Supreme Court

83 S.W. 937

73 Ark. 281

WOMACK v. WOMACK

Supreme Court of Arkansas

December 10, 1904

Appeal from Saline Chancery Court, LELAND LEATHERMAN, Chancellor.

Suit by Mrs. J. E. Womack against her husband, D. H. Womack, to set aside a decree of divorce, and to annul a conveyance of land from her to him. Judgment below for defendant, from which plaintiff has appealed. Reversed.

STATEMENT BY THE COURT.

The appellee was married to appellant, in Tennessee, in 1872. Each was of small means, but some few hundred dollars came to the wife (appellant). They moved to Missouri after a few years. Then the appellee was injured and incapacitated from work for a season, and appellant taught school, and appellee admitted drinking heavily while in Missouri. After a few years there the couple came to Arkansas, first to Little Rock, and later to Saline County, where they have continuously resided for the past quarter of a century. Six children were born to them. Only two, however, survive, and they have grown to manhood and womanhood. Each was industrious, and it is evident that the joint efforts of both accumulated the property hereinafter referred to, part of which is in the husband's name and part in his wife's. In 1895 appellee filed suit for divorce against his wife. Just what were the allegations is not developed. The suit was shortly dismissed; appellee stating to his attorney, when he brought it, that he did not intend to prosecute it, but was bringing it to "scare her." On the 26th of October, 1898, appellee filed another suit against appellant, alleging adultery with W. W. Coffman and cruel treatment as grounds therefor. This was brought to the November term of Saline Chancery Court. Depositions were promptly taken on notice to appellee. The charge of adultery with Coffman was made out by the testimony of appellee in this way: he claimed to have eavesdropped a conversation between them, which, if as stated, was evidence of guilt. There was no corroboration of his evidence tending to prove the adultery at all. Several other witnesses testified to the habitual use of harsh, obscene, vulgar and profane language by appellant to appellee. Such conduct, unexplained, made a prima facie showing sufficient to warrant a chancellor in granting a decree. These depositions were not filed till the day the decree was rendered. Nothing was done at the November term of court; the next, May, term passed, and nothing was done then. On the 31st of August, 1899, at an adjourned term of the court, a decree was rendered for plaintiff (appellee) on the complaint and depositions on file. From the complaint the charge of adultery had been erased, and the decree granted on the other ground. The decree also confirmed to the defendant title to certain lots. No property interests were mentioned in the complaint or evidence, and this confirmation of title is injected into the decree without allegation or evidence. Appellee failed in business in 1895. Prior to that time this property was purchased on credit in the wife's name, and paid for by the joint industry of both. In his assignment and subsequent bankruptcy appellee treated this as his wife's property. It cost $ 400, was improved several hundred dollars, and was recently sold by Mrs. Womack for $ 500. The evidence fairly establishes about $ 700 valuation for it. A hotel, known as the "Womack House," was purchased and paid for by the joint industry of both. The title to that is in appellee, and in his assignment and bankruptcy proceedings it was scheduled as his homestead. Its value is not shown in evidence, but from descriptions and reference to its size, structure, etc., it is evidently valuable property. In addition to these two tracts--one standing in the husband's name, the other the wife's name--was a third, which is one of the chief subject-matters of this suit. It was acquired in this way: When appellee failed, this real estate and his stock of pottery and goods were sold by a receiver, and purchased by Mrs. Womack for $ 3,300. She executed her note for that amount to Mr. Hughes who took a mortgage on the property bought and her lots for security. How much of this was for personalty, and how much of the realty, does not appear. Each party claims that he or she paid out all of this $ 3,300 with little assistance from the other. The evidence, however, is convincing that this like the other property, is the result of the hard and unremitting toil of both, but in this instance more of the wife's than the husband. She ran the hotel and store while he travelled and sold pottery. While the most of the labor fell on her, he was evidently industrious, and doing his share also. On December 14, 1898, after the November term of court had passed, and nothing done in the divorce case and while the relation of husband and wife still existed, Mrs. Womack conveyed the real estate thus acquired to her husband. There was no present consideration for it. In his bankruptcy proceeding prior to that he had treated this property as his wife's. Mrs. Womack was not represented by attorney in the divorce proceedings, and did not employ any during its pendency. On the 17th of December, 1900, appellant brought this suit in Saline Chancery Court to vacate the divorce decree rendered August 31, 1899, and to set aside the conveyance of December 14, 1898, of the lands conveyed by her on that date to her husband. Evidence was taken by each party seeking to show ground for divorce against the other, and upon the issues of fraud in the procuring of the decree and the deed aforesaid. Needless to say, it is very conflicting. The chancellor dismissed the complaint, and the plaintiff below, Mrs. Womack, appeals.

Evidence was adduced tending to show that Mrs. Womack accepted the decree in good part, and it is urged that she is estopped, after the lapse of time, from maintaining this action. As the evidence shows that there has been no change in the status of the property nor the parties, and no action induced by reason of such delay, this point is not further considered, and the facts not detailed.

D. M. Cloud, E. H. Vance, Jr., and Andrew I. Roland, for appellant.

The maxim that fraud vitiates everything applies to a decree of divorce. 2 Nelson, Divorce & Sep. § 1050. The bill presented ample grounds for equitable relief, if sustained by the evidence. 34 Ark. 291; 54 Ark. 539; 1 Black, Judg. 395; 36 Fla. 502; 41 Ill. 449; 113 Ind. 131; 41 Ill.App. 449; 17 Cent. Dig. 172; 23 Ark. 615. Renewal of matrimonial intercourse by a husband after a cause for divorce is a condonation. 62 Ark. 611. Trials on appeal in chancery court cases are de novo, and the chancellor's finding will be supported only by a preponderance of the evidence. 41 Ark. 292; 43 Ark. 307; 55 Ark. 112. Appellee's proof fails to show that the indignities of which he complained occurred within the statutory period. Sand. & H. Dig., § 2511; Martin's Ch. Dec. 172.

Murphy & Mehaffy, for appellee.

To authorize relief against a judgment for fraud, it must have been committed in procuring the judgment. 57 S.W. 728; 101 Mo. 151. A judgment by default is conclusive. 27 S.W. 612. The fraud must have occurred in the very concoction or procurement of the judgment. 135 Mo. 482; 84 Mo. 129; 13 S.W. 674; 26 S.W. 367; 34 S.W. 1070; 91 Am. Dec. 336. Proof of the fraud must be satisfactory and convincing. 60 Tex. 238; 61 Tex. 413; 9 Culp. (Pa.) 471; 73 Am. Dec. 211; 11 Am. Dec. 218; 70 Am. Dec. 307. A decree of divorce is conclusive, and cannot be vacated upon an original bill, upon the ground that it was fraudulently obtained. 75 Am. Dec. 482; 7 Ohio 466; 54 Ark. 639; 5 Ark. 183; 6 Ark. 44; 9 Ark. 354; 32 Ark. 717; 13 Ark. 253; 10 Ark. 428; 49 Ark. 397; 50 Ark. 458; Sand. & H. Dig., § 4200; 1 Black, Judg. 347, 317; 23 L. R. A. 46; 48 Md. 44; 99 Am. Dec. 743; 96 Am. Dec. 623; 6 Wis. 164; 28 Minn. 132; 98 Ind. 165; 74 Cal. 353; 85 Cal. 522; 17 F. 36; 173 Pa.St. 1; 71 F. 21; 23 U.S. 146; 53 Ky. 624; 50 Ky. 102.

HILL, C. J. WOOD, J.

OPINION

HILL, C. J. (after stating the facts).

1. The fourth paragraph of section 4197, Sandels & Hill's Digest, authorizes judgments to be vacated, after the term of their rendition, "for fraud practiced by the successful party in the obtaining of the judgment or order." Section 4199 prescribed the procedure for such attack, and it was substantially followed in this case; and section 4200, as construed in Chambliss v. Reppy, 54 Ark. 539, 16 S.W. 571, requires, as a condition precedent to the maintenance of such suit to vacate the decree, that it be adjudged that there was a valid defense to the action in which the judgment attacked was rendered. Therefore this case requires the determination of these two questions: (a) was there fraud practiced in the obtaining of the divorce decree? (b) has Mrs. Womack, the defendant therein, established a defense to the divorce suit?

a. Where a husband leads the wife to believe that he will not prosecute a pending divorce suit, and she, relying on such assurances, makes no defense thereto, it is fraud "in the obtaining of the judgment" for him to thereafter prosecute the suit to judgment, without giving her further opportunity to defend it. Nelson on Divorce, § 1052; Scanlan v. Scanlon, 41 Ill.App. 449; Nicholson v. Nicholson, 113 Ind. 131, 15 N.E. 223; Thelin v. Thelin, 8 Ill.App. 421.

Mrs Womack testifies that she had such assurances from her husband; that a reconciliation was effected between them by Cooper, the attorney for Womack, who boarded in their hotel; and that the property was conveyed to him as a part of such compromise of reconciliation, and that she knew of nothing to the contrary until after the adjournment of court on the day the decree was rendered, when she was notified of its rendition. She is corroborated on...