92 Vt. 305 | Vt. | 1918
The petitioner, John E. Deyette, filed his petition for a divorce, and the petitionee, Eugenie Deyette, filed her cross petition. The two petitions were heard together. A bill of divorce was granted the petitioner for intolerable severity, and the cross petition was dismissed. The care and custody of the minor child was granted to the petitionee, and the petitioner was ordered to pay one hundred dollars per year to the petitionee toward the care and support of the child until she shall arrive at the age of sixteen years. The ease is here on the petitioner’s exceptions.
It appeared that the petitionee had previously married one Borst in the state of New York, and that a decree of annulment of that marriage had been granted by a New York court, on the ground that she was married to him prior to, and had not lived or cohabited with him as husband and wife since attaining, the age of legal consent. A certified copy of the record of those proceedings was introduced in evidence, and is made a part of the exceptions. It seems from that record that at the time those proceedings were instituted, all the parties thereto were domiciled in the state of New York, and no claim is here made to the contrary. The record, shows that the process was personally served upon the defendant Borst within that state. It therefore appears that the New York court had jurisdiction of the parties and of the subject matter. Borst failed to appear in answer to the case, and was wholly in default. Those proceedings were brought, and the decree therein rendered, under a statute of that state permitting a marriage to be annulled when contracted by a party of less than eighteen years of age, provided the parties did not freely cohabit as husband and wife after such party had attained that age.
In the trial of the 'present case the petitioner sought to vitiate the New York decree, on the ground of fraud in its procure
That the question of jurisdiction of the New York court was open to inquiry is beyond doubt. Domenchini’s Adm’r v. Hoosac Tunnel & W. R. R., 90 Vt. 451, 98 Atl. 982. But the fraud shown did not go to the jurisdiction. We will assume that such a judgment rendered in that state may be impeached in a collateral action, for fraud; yet it can only be for fraud extrinsic or collateral to the matter tried in that action — it cannot be impeached by either of the parties thereto, by reason of false testimony given at the time, even though given by a party. Camp v. Ward, 69 Vt. 286, 37 Atl. 747, 60 Am. St. Rep. 929; French v. Raymond, 82 Vt. 156, 72 Atl. 324, 137 Am. St. Rep. 994. It is said, however, that the petitioner in the present action is a stranger to the foreign decree, and therefore he may impeach it collaterally, citing in support of this position Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184. In that ease the fraud was as to the domicile of the plaintiff to the action in which the foreign judgment was. rendered, and went to the jurisdiction. This Court said the defendants in the case of Blondin v. Brooks were strangers to it, and that strangers can impeach a judgment collaterally “when it is for their interest to impeach it at all.” Granting (though not deciding) that a stranger to a judgment may impeach it for intrinsic fraud, if it be for his interest to do so, his “interest” must be such, at least, as concerns him in the collateral action wherein the impeachment is sought. Otherwise he is not aggrieved. In Kinnier v. Kinnier, 45 N. Y. 535, 6 Am. Rep. 132, the defendant was married in the state of Massachusetts, to one Pomeroy. After living together there for some years, Pomeroy went to Chicago to procure a divorce for a cause not recognized by the laws of Massachusetts, and to evade the laws of that state. The defendant went to Chicago, appeared in
We think it clear that the petitioner in the present action has no such interest in the matter of the foreign judgment as entitles him to impeach it on the ground of the fraud shown. The wisdom of this law is forcibly brought to mind by the circumstances of this case, where the petitioner is attempting, by such impeachment, to render his marriage with the petitionee void, and thereby illegitimatize their minor daughter of tender years, begotten and born in lawful- wedlock, the fruit of the union. The law would be lacking in justice if it permitted such an inhuman undertaking to succeed.
Several exceptions were taken by the petitioner, the consideration of which requires an examination of evidence not before us as a part of the record. To such exceptions we pay no attention. The bill of exceptions had attached to it what is stated to be exceptions taken by the petitioner during the progress of the trial. We assume that this was done by the presiding judge, and that they were intended to be a part of the bill. They are so treated. The evidence offered to be shown by the
Exception was taken to that part of the decree which gives the care and custody of the minor child to the petitionee, as unreasonable, in that it contemplates that the child will be taken out of the jurisdiction of the court, thus placing it beyond the power of the father to see the child as specified in the decree. Suffice it to say of this exception, that there is nothing about the decree indicating the contemplation here stated.
It is said that the court in effect found and decreed that the petitionee had been guilty of such intolerable severity toward her husband as to show her not a fit person to live with him; and if she has done ill in the marriage relation, she will be likely to do ill in the parental relation. Giving this all the force it is entitled to as an argument, it is far from controlling in view of the fact, among others, that the petitioner’s love for the child is so small that it did not even deter him, on the trial of the facts in the court below, nor on exceptions in this Court, from strenuously attempting to procure a ruling that could not result otherwise than to render this same child an illegitimate, and relieve him of any liability for her support. The good of the child is the primary consideration, and that can be judged to some extent by the comparative acts of the father and the mother, showing love and affection for it, and a parental interest in its welfare. It is very apparent fr.om the record that the court below committed no error in decreeing the care, custody, and control of the child to the mother.
Judgment affirmed and cause remanded.