Wood v. Wood

• Decision Date: 12 June 1923
• Docket Number: Case Number: 12446
• Citation: 92 Okla. 297,1923 OK 383,216 P. 936
• Parties: WOOD v. WOOD.
• Court: Oklahoma Supreme Court

1923 OK 383

216 P. 936

92 Okla. 297

WOOD v. WOOD.

Case Number: 12446

Supreme Court of Oklahoma

Decided: June 12, 1923

Syllabus

¶0 1. Judgment--Vacation for Fraud.

False evidence or perjury alone, relative to an issue tried, is not sufficient ground for vacating or setting aside a judgment; the fraud which will authorize the court to vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the judgment was rendered; it must be such fraud as to prevent the other from having a trial of the issues.

2. Divorce--Custody of Children--Modification of Decree.

A modification of the decree awarding custody of children will not be made unless it be shown that the circumstances of the parties have changed, or unless material facts are disclosed which, at the time the decree was rendered, were unknown and could not have been ascertained with reasonable diligence.

Commissioners' Opinion, Division No. 5.

Error from District Court, Carter County; Thos. W. Champion, Judge.

Action by Sam G. Wood against Etta Wood (now Freeman) to modify divorce decree. Reversed and remanded, with directions.

Wm. G. Davisson and Chas. W. Wortman, for plaintiff in error.

Sigler & Jackson, for defendant in error.

FOSTER, C.

¶1 On April 10, 1915, the defendant in error, S. G. Wood, plaintiff below, filed an original action in the district court of Carter county, Okla., against plaintiff in error, Etta Wood, now Freeman, defendant below, for an absolute divorce and custody of a minor child, Margaret Wood, then eight years of age. The parties will be hereinafter designated as they appeared in the court below.

¶2 On April 12, 1915, defendant filed her answer and cross-petition, denying generally the charges in plaintiff's petition, and charging the plaintiff with habitual drunkenness and extreme cruelty, and praying for an absolute divorce, the care and custody of said minor child, temporary alimony and attorney fee, permanent alimony, and a division of property.

¶3 On April 22, 1915, the plaintiff filed an amended petition, charging defendant with gross neglect of duty, adultery with one Walter Freeman and others, cruelty, and a general denial of the matter set up in said answer and cross-petition. Said petition contained a prayer for an absolute divorce and custody of said minor child by reason of the wrong and fault of the defendant.

¶4 Said cause came on for trial on May 21, 1915, and the court entered a decree, denying the prayer of plaintiff's amended petition and granting the defendant a divorce, committing the custody of said minor child, Margaret, to the defendant and conveying and setting apart to the defendant a house and lot in the city of Ardmore, Okla., being a part of lot 7 in block 375. together with all the household and kitchen furniture located therein. The court further ordered the plaintiff to pay defendant for the support and maintenance of said child until she reached her majority the sum of $ 20 each month, and an attorney fee of $ 100.

¶5 On March 3, 1917, upon application of the plaintiff, the court entered an order directing the defendant to deliver said child to the plaintiff one day each week, and further ordering defendant to appear on April 2, 1917, and show cause why the decree of May 21, 1915, in the original action, should not be revoked and the defendant adjudged in contempt of court. But this application was, on motion of the defendant, on April 2. 1917, stricken from the files for the reason that plaintiff was in default in the payment of alimony and in contempt of court.

¶6 Again, on January 3, 1919, plaintiff obtained an order modifying the original divorce decree of May 21, 1915, in which the care and custody of said minor child was taken from the defendant and awarded to the plaintiff, and in pursuance of this order, the sheriff of Tulsa county executed a writ and delivered said child to plaintiff at Ardmore, Okla., on January 7, 1917. But this order was on January 13, 1919, thereafter, on motion of the defendant, vacated.

¶7 On the same day a separate action was fried by the plaintiff in the district court of Carver county, Okla., being cause No. 4100, asking for a receiver for the property set apart to defendant in the original decree of May 21, 1915, wherein defendant obtained a judgment for the property, and said receiver immediately qualified and took charge of said property, and has at all times since been in charge thereof under the direction of the court.

¶8 Although the order of January 3, 1919, taking the custody of said child from the defendant and awarding her to the plaintiff, had been set aside, it was agreed, upon the suggestion of the court, that the child should be allowed to remain in the custody of plaintiff pending a final hearing on a petition of plaintiff to modify the original decree of May 21, 1915, which petition had been filed on August 1, 1917.

¶9 By an order of court entered April 12, 1919, the action for receiver and all matters pending therein, as cause No. 4100, were consolidated with the original divorce action No. 2841. In his petition filed August 1, 1917, the plaintiff prayed for a modification of the original decree entered on May 1, 1915, wherein defendant obtained a divorce by reason of the wrong of the plaintiff, and was awarded the custody of the minor child, Margaret, and the conveyance of the home place in the city of Ardmore. In the petition, plaintiff alleges that the defendant obtained said property division after a fraudulent agreement had been made with plaintiff to use the same as her home and as a home for the minor child, and that he was induced to make said agreement by the sworn testimony of the defendant and Walter Freeman, as witnesses, at the trial of the original cause, each testifying that they had not been guilty of adultery. That said sworn statements and all statements of defendant and Freeman, denying adultery, were false and made for the purpose of deceiving plaintiff and inducing him to agree to said property division. That defendant and Walter Freeman had conspired to bring about a separation, a divorce, possession of said property, and the custody of said child for the purpose of marrying each other, and selling or incumbering said property and enjoying the benefits thereof. That after the divorce, an attempt and been made to mortgage said property, being the family home in the city of Ardmore; that the defendant and Waiter Freeman had married since said decree was rendered; that they had failed to keep the child, Margaret, in school and church, carrying her from place to place; that Freeman was a reckless, careless spendthrift, and a man of bad reputation; that said judgment was therefore obtained by fraud, and should be modified by committing the custody of said child to plaintiff, and divesting the title to said real estate out of the defendant and vesting it in the plaintiff.

¶10 In her answer the defendant entered a general denial of the charges contained in plaintiff's petition, admitted her marriage with Waiter Freeman, but specifically denied a conspiracy with Freeman to defraud plaintiff out of his property, or the making of any false or fraudulent representations to plaintiff, as charged in his petition; denied that her husband, Walter Freeman, was a reckless spendthrift, or unsuitable to have the custody of the child, Margaret; alleged that said child had been surrounded by every comfort and had had proper schooling and religious training; that the child was 12 years of age and preferred to stay with her mother; that said Walter Freeman had a large income as art expert automobile mechanic, was thrifty, industrious, and able to keep said child in more comfortable circumstances than plaintiff; that the receiver had been wrongfully appointed without notice to defendant; that plaintiff had wrongfully, and without proper notice to defendant, obtained said order, and also an order permitting said child to remain in his custody, pending the final disposition of the cause, and that both orders should be set aside; that the original decree giving said property to defendant and committing the custody of the child to her be confirmed. A copy of the original decree and of the order appointing the receiver was attached to defendant's answer.

¶11 The cause was tried September 15, 1920, and on January 3, 1921, the court entered judgment in favor of the plaintiff, vacating the decree of May 21, 1915, in so far as it awarded alimony and custody of child to defendant, decreeing said real estate to the plaintiff and ordering the receiver to report, and decreeing the care and custody of said child to the plaintiff, to all of which the defendant excepted. Motion for a new trial was filed and overruled, exceptions taken, and the defendant brings the case to this court for review, and assigns the following errors:

"First. The said court erred in overruling the motion of plaintiff in error for a new trial.

"Second. Said court erred in admitting evidence on the part of the defendant in error.

"Third. The judgment rendered by said court was contrary to law.

"Fourth. The judgment rendered by said court was contrary to evidence.

"Fifth. The judgment rendered by said court was contrary to the law and the evidence.

"Sixth. The judgment rendered by said court was not sustained by the evidence."

¶12 Generally speaking, the objections taken by the defendant to the judgment of the lower court are that the court was not authorized by the pleadings or the evidence to set aside the decree that had been rendered in the case. In our judgment, all of the assignments of error may be disposed of under this general head.

¶13 The plaintiff insists that the lower court Was justified by the evidence in setting aside and modifying the original judgment, first, because the judgment was rendered upon an agreement and contract signed by the parties, and the party in whose favor said judgment was rendered procured...