*1 GLOVER v. GLOVER. (242 298.)
No. 7527. Decided March 1952. P. 2d *2 Judgment, Divorce, between S., distinction sec. 168. J. See 27 C. Jur., upon. 31 Am. attack extrinsic fraud for collateral intrinsic and 664; Judgments, L. 1201. sec. 88 A. R. Ernest Stewart, Hanson, Lee Pratt and Elliott Cannon & City appellant. Baldioin, Jr., F. all of Lake for Salt Romney, Boyer Bertoeh, City, respondent. Lake for & Salt WOLFE, Chief Justice. seeking modify
This divorce decree is an action to appeals from an the basis of extrinsic fraud. Plaintiff sustaining Third Amended Com- order a demurrer to her grounds plaint Cause, and Petition to Show based (1) that there were: Lack of over action; (2) to state facts suf- matter of the and Failure ficient to constitute a cause of action. alleges shortly obtained her
Plaintiff that before she (her husband) induced her divorce the defendant quitclaim property held them to to him her interest $15,000, joint tenants; worth that property, earnings they purchased joint parties while with the of the given quitclaim wife; that the deed was were husband and consideration, plaintiff relying payment any without deed for on her he wanted the husband’s statements that handling purposes he could of convenience in the title so promised readily; defendant sell the land more and that day two after pay plaintiff proceeds. A one-half the given, plaintiff a default obtained deed was (August 3, 1944). did not mention the The divorce decree property settle- property. not included real It was alleges to men- plaintiff’s failure pleading ment. The property or include the misrepresenta- tion was due to the agreeing tions and conduct dispose defendant pay equitable share; and her fraudulently deceitfully prevented the matter parties’ property rights settlement of the to come before the court and be determined at time court granted. divorce was allegations divorce, plaintiff are that after her moved
to Montana and thereafter the defendant continued to mis- believing lead her into that he would sell have appraised it pay her one-half its value. The City returned to Salt Lake in 1947 and for the first time was notified that defendant refused to acknowl- edge her interest in the that all he owed and stated her was quitclaim recited as consideration $10 *3 deed. August 9, plaintiff
On petition filed a for an order why to show cause the deed from to defendant should why not be set aside the not defendant should required be pay present to equal a sum to one-half the premises. value of complaint the said The amended petition seek the the alternative to have defendant de- clared a equitable constructive trustee of her of the share property. defendant, general demurrer, by sub- jected jurisdiction to himself the of the court. pleadings were filed the under same docket number as the divorce suit. The defendant contends is entitled no relief from of or modfication the divorce ground alleged decree on fraud of the preventing plaintiff making from a disclosure of facts to concerning the court she when obtained the divorce decree the defendant’s default. Defendant argues granted plain- decree having obtaining tiff and been all successful the relief sought, she cannot claim to be the victim of fraud. extrinsic But seek of the inducement not to a distribution very decree is act extrinsic fraud which urged plaintiff’s is now complaint. To determine whether legally act of fraud is to be classed as extrinsic or intrinsic is the issue before us. Weyant Savings
In v. Utah Trust & Co. Utah 181, 201, 189, 197, 9 A. L. R. we said: judgments by “This court has also held that and decrees entered competent jurisdiction, courts of person legally acquired, only if the action and has been be can appeal equity assailed on direct or in for extrinsic as contra-dis- tinguished from intrinsic fraud.” by Annotation, It is stated the author R. of the A. L. 113, page Vol. 1235: “Extrinsic fraud consist of act must some ulterior to the merits proceeding judgment party arose, the attacking out of which the which the prevented from his case present something was induced not to it. Such fraud done consists party, preventing party present- successful the adverse from ing court, all of was, fact, his case to the so that there no adver- sary (Italics added.) trial or decision of the issue in that case.”
In R., page 1201, Vol. 88 A. L. we find: underlying “This principles rule is based that there must litigation, be an end to and that an issue which has been tried and passed the first court should be retried in an for against judgment, relief litigation since otherwise would in- terminable; granted whereas in the case relief is theory prevented that such fraud has fully presenting case, and hence that there has never been *4 a real contest before the court on the matter of the suit.” leading In the subject, ease the States v. United Throckmorton, 61, 93, by 96 U. S. 25 L. Ed. cited court this Estate, the case of In re 428, Rice’s Utah 182 P. 111, 118, Supreme the Court the of States United stated: party exhibiting “Where prevented the unsuccessful has been from fully case, by deception practiced fraud opponent, or on him his by keeping away as court, him promise from compromise; a false of being knowledge kept suit, the never had defendant or ** plaintiff; these, similar ignorance by the the acts of *— in the been a real contest trial that there has never cases which show may hearing case, be sus- which a new suit of are reasons for or judgment former or decree and to set and annul tained aside added.) hearing.” (Emphasis open the case new and a fair for a appear The fact not to contest that did asked, divorce, all the relief that obtained party insofar not that she the successful does mean anyone property Nor this concerned. does rights parties’ in this were assert that the litigated. contrary, plaintiff did not To the ever attention of her to the because court’s which, agreement later turned as it reliance upon private keeping. out, It is stated in defendant had no intention of Pomeroy’s Jurispru Equity regard fraud extrinsic 919(b) 3, Ed., : Eec. dence Vo. 5th very practiced act appear the fraud was “It must * * ** * * obtaining whether It * * * party opposite on on both court or or committed having prevent from when effect is to its fully, keeping as for instance him trial or case away promise compromise, purposely keep- from court false or or ignorance pendency added.) ing (Italics him of the action.” causing re-litigation any formerly areWe issues adjudicata tried. No inroads the doctrine res are being affording* simply. op an made. We are powers general portunity to invoke the of a court of include within a decree rights, parties, normally included therein, but omitted case because of the this Budge, Peterson v. fraud the defendant. As stated 35 Utah 215: firmly “There is of law more established than which no rule occupying fiduciary persons con- holds that between transactions stronger superior other, which the fidential relations with each advantage other, upheld.” party obtains over the cannot an *5 fiduciary It is there was a be- relationship parties procured quit- tween the at the time defendant days claim deed from a few before the divorce was obtained. been, might
While it have separate better a seeking action to have the defendant declared constructive property by acts, trustee of this virtue his fraudulent nevertheless under doctrine announced Estate, case of In re supra, Rice’s and McLaren v. McLaren, 99 Utah we think in general appearance view of the defendant’s that this matter may adjudicated general be under the pleading District Court initiated entitled a Petition why to Show Cause divorce decree should not be rights modified so as to include within it the parties, omitted therefrom because of extrinsic fraud. appellant. reversed. awarded to Costs Wade, JJ., McDONOUGH and concur.
HENRIOD, (dissenting). Justice Judge
I expressed by concur the views As LEWIS. pointed out, opinion the main concedes that have maintained an suit on her claim fraud or breach of contract. This would seem to orderly procedure, allowing pro- more than rather her to confusing itself, ceed problems where continuing jurisdction, fraud, intrinsic pleading very case, defenses and the like arise. This original petition only was amended times to be three demurrers, defeated four times successive illustrates point. problems generally independ- Such in an do arise action, where, here, ent is not case right process regularly, would have the to be served with statutory and would have the time within which to answer. prevailing opinion sanctions the trial an action admittedly brought independently, which could have been *6 long contract, in a divorce or breach for fraud herself, in stage by plaintiff set tried, whose since and in which jurisdiction of the court invoked the which she dif- prayed. It is which she the relief for all she obtained litigant, a could be how she ficult to see grounds of extrinsic necessary requirement for relief position now permitted to take the not be should fraud. She equit- a basis for non-disclosure is considered that her own failure to disclose very action where such relief in the able procedure this indulged. sanctioned To allow the by irate decision, my opinion, invite excursions would ex-husbands, domestic realm into the altered ex-wives why prop- cause simple of an order to show vehicle vintage not be re-examin- erty ancient should settlements re-adjusted. ed and Judge
LEWIS, (dissenting). District I dissent. defendant, year and in con-
Plaintiff and
agreement whereby
divorce,
templation
entered into an
property to
her interest
in certain real
deeded
promise
to sell
reliance
his
Thereupon,
day
later,
proceeds.
or so
she
divide
receiving from the divorce court
obtained a divorce
including
prayed,
complete
for which
an award
relief
she
household'furnishings.
did not
of all the
She
ask
agreement
approve her
relative to the real estate
court to
agree-
nor did
disclose to the court the existence of her
she
question.
now, years
later,
ment or the
She
al-
refuses,
leges
recognize
the defendant
her interest
applies
original
to the court
divorce action for relief. She seeks an order to show cause
why a constructive
should not
trust
be delcared under the
continuing jurisdiction
claim that the divorce court has
parties
subject
and the
matter. She also seeks an award
attorney
fees under the same claim.
majority opinion
holds that under
these circum-
stances the divorce trial and decree were tainted with ex-
trinsic
fraud and now
plaintff.
direct attack
majority holding, although
indicating that extrinsic
fraud
'prevented
exists when the
unsuccessful
case, applies
the doctrine when the successful
party chooses not to
disclose
facts.
Inasmuch as the
record
discloses that defendant’s
fraud occurred
plaintiff had
complaint,
verified her divorce
after
promissory
any,
not,
if
in the writer’s opinion,
be the basis for
modification of a decree based
complaint.
ruling
The true effect of the
in the instant case
is to have the divorce
court enforce an
prop-
erty
settlement
parties.
made
always
The rule has
*7
been otherwise. Howarth
Howarth,
v.
App.
81 Cal.
266,
fully adjudicated. I do not believe that substantive law should ever be justify strained in order to pro- erroneous cedure consequently required should be pursue her cause of action.
CROCKETT, J., being disqualified, participate did not herein.