Young v. Young

• Decision Date: 12 April 1939
• Docket Number: 12615.
• Citation: 2 S.E.2d 622,188 Ga. 29
• Parties: YOUNG v. YOUNG.
• Court: Georgia Supreme Court

2 S.E.2d 622

188 Ga. 29

YOUNG v. YOUNG.

No. 12615.

Supreme Court of Georgia

April 12, 1939

Syllabus by the Court.

1. A judgment of divorce will not be set aside at the instance of the defendant, who was served, but failed to appear and plead therein, on the ground that the allegations of cruel treatment contained in the petition as the basis for said divorce, and the further allegation that at the time of the filing of the suit the parties were living in a bona fide state of separation, were false; and this is true even though the defendant may have agreed not to defend the action.

2. The judgment will not be set aside because the defendant had a good defense of which he was entirely ignorant, where it appears that his ignorance was due to his own negligence. Nor does it constitute a ground for setting aside such judgment that the plaintiff concealed from the defendant and the court certain facts which, had they been revealed, would have constituted a good defense to the action.

3. Where, however, the defendant was prevented by acts of coercion and duress on the part of the plaintiff from appearing and pleading in said case, the judgment may be set aside as in cases of fraud. The court did not err in overruling the general demurrer.

R S. Sams and Ray Williams, both of Atlanta, for plaintiff in error.

Houston White and Augustus M. Roan, both of Atlanta, for defendant in error.

REID Chief Justice.

Mrs Mary Elizabeth Young filed suit against Charles W. Young for divorce a vinculo matrimonii. On March 6, 1936 after the rendition of successive verdicts as required by law, a decree was entered in her favor. A judgment based upon an agreement between the parties, for permanent alimony for the support of Mrs. Young and the minor child of the marriage, was also rendered by the court. On February 18, 1938, Mr. Young filed an equitable petition praying that these verdicts and judgments be set aside; that he be granted the custody of the child during certain parts of the year; that reasonable alimony be granted only for the support of the child while in Mrs. Young's custody; and that he be allowed to plead in said case by filing an answer, which he attached to the petition. This proposed answer denied the material allegations of the petition for divorce, charged numerous acts of cruelty on the part of Mrs. Young, and prayed that a total divorce be denied her and judgment for total divorce be entered in Mr. Young's favor. He alleged absence of Mrs. Young from the State since the rendition of the decree and until the filing of the present action. Mrs. Young attacked this petition by way of a general demurrer, and to a judgment overruling the demurrer she excepted.

The petition of Mr. Young charges in substance: (1) That the ground upon which the divorce was sought and granted, and the essential allegation contained in the petition therefor, viz., that at the time of its institution the parties were living in a bona fide state of separation, were false and unfounded; that in fact the petitioner had been guilty of no cruel treatment of Mrs. Young, but on the other hand she had been guilty of many acts of cruelty towards him; that as a matter of actual fact they lived together as man and wife under the same roof up to a few weeks before the rendition of the final verdict and the entry of the decree thereon; (2) that at Mrs. Young's request he agreed not to appear in court and contest the divorce, which he charges constituted a fraud on the court, (3) that this agreement and his conduct in failing to appear and defend the suit were the result of certain acts of fraud and duress, which will be more fully set out hereinafter; and (4) that Mrs. Young, before and during the pendency of the suit for divorce, had been guilty of acts of adultery with a named person, which it is alleged constituted a good defense to her action for divorce based on cruel treatment, and of which he was entirely ignorant. For each and all of the above reasons, it is urged that the verdicts and judgments should be vacated.

1. It is important to note that the allegations that the petitioner had not been guilty of any cruel treatment of Mrs. Young, and that the parties continued to live together as man and wife until shortly before the final verdict and the entry of judgment thereon, would have constituted good defenses to Mrs. Young's action for divorce; for they controvert two of the essential and material allegations made by her in her petition. There is no question that Mr. Young was served with the petition and process, and otherwise had knowledge of the allegations of the petition; and of course the fact that said allegations were false was peculiarly within his knowledge. Since it is provided in the Code, § 30-113, that 'No verdict or judgment by default shall be taken in a suit for divorce, but the allegations in the petition shall be established by evidence before both juries,' the complaint is essentially that the verdicts and judgments are based on perjury. Fraud which will permit of the setting aside of a former judgment between the same parties is 'limited to matters which are extrinsic and collateral to the issue tried in the former case, and do not include fraud in procuring a judgment by false testimony' (Elliott v. Marshall, 182 Ga. 513, 185 S.E. 831; Walker v. Hall, 176 Ga. 12, 166 S.E. 757; Thomason v. Thompson, 129 Ga. 440, 59 S.E. 236, 26 L.R.A., N.S., 536), except and 'unless the person charged with such perjury shall have been thereof duly convicted, and unless it shall appear to the said court that the said verdict, judgment * * * could not have been obtained and entered up without the evidence of such perjured person.' Code, § 110-706. The legislature is wise in so requiring; for otherwise there would be retrial after retrial of many cases, with no end to litigation, and a judgment would be stripped of its prime attribute, that is, its finality.

It is argued that since Mrs. Young had no valid ground for divorce and since she was enabled to obtain the same upon such false testimony because of the agreement and conduct of the husband in not defending the action, this constituted a fraud and imposition on the court, and that in such case the above rule does not apply. It is pointed out that a marriage contract is essentially different from an ordinary civil contract; that it is one affected with a public interest; that the legislature has regulated the grounds upon which it may be dissolved; and that to allow the parties to a marriage to so collude between themselves and obtain a divorce on false testimony is but to put it in their power to dissolve the contract at will and without just cause, which the court will not permit on being informed of the deception practiced upon it. The full pressure of the argument is felt, but we can not agree to its soundness. It seems to be the general rule in other jurisdictions that presenting fabricated evidence or perjured testimony upon a trial where the falsity might or should have been exposed and refuted is not such a fraud in obtaining a judgment of divorce as will warrant its nullification. See authorities cited in L.R.A.1917B, 429. Our Code is very clear that a judgment procured upon false testimony can not be set aside until the perjured witness has been convicted thereof. The legislature has made no exception in reference to judgments of divorce; and this should constitute sufficient answer to the argument presented. By making it necessary that the allegations of the petition be made out by sufficient evidence, it would seem that it was the intent of the lawmaking body to bring the judgment of divorce within the operation of this rule. A judgment of divorce, in our opinion, should have the same attribute of finality as other judgments, and the interest of the State in the marriage relation is not sufficient to justify the court, at the instance of a spouse against whom a judgment of divorce has been rendered, and who has had his or her day in court, to set the same aside on the ground that it was based on the perjured testimony of the other spouse, unless such other spouse has been convicted of the perjury; and it can make no material difference, in this connection, whether the defendant appeared at the trial and contested the truth of the allegations contained in the petition for divorce, and the other spouse successfully obtained the judgment upon such perjured testimony, or whether the defendant, being agreeable to the divorce, agreed that he would not expose the falsity of the allegations and the testimony introduced in support thereof. In such a case consideration is to be given, not alone to the interest of the parties to the record and their children, but to society as a whole; and but for the sanctity of judgments its safe structure would be all the more difficult to preserve. The wisest course, and that beset with less evils, is conclusively to presume the correctness of the judgment of divorce, until and unless it is impeached in the manner prescribed in the above section. Matters of collusion, consent, or condonation should be set up before final verdict. Code, § 30-109. Those cases dealing with the right of a court of equity to set aside a judgment of the court of ordinary appointing or discharging an administrator because of fraud intrinsic in the judgment, that is, as to matters passed on in the rendition of the judgment of appointment or discharge, and those cases authorizing annulment of judgments where a court was deceived into taking jurisdiction of a cause when in fact it had none, must be considered as based on special considerations and as constituting exceptions to the rule, and are not by analogy authority contrary to the ruling here made. Examples of the first are:...