205 P. 910 | Ariz. | 1922
(After Stating the Facts as-Above.) — The complaint and decree in the divorce action were silent concerning the community property, or its disposition. In a suit for divorce “when there is no allegation as to the community property and no decree or judgment on the point, the decided weight of authority is that the former spouses hold the property as tenants in common, subject of course to the payment of the debts of the marital partnership.” McKay on Community, Property, § 413, and cases cited; Ambrose v. Moore, 46 Wash. 463, 11 L. R. A. (N. S.) 103, and annotations, 90 Pac. 588. Following the authorities cited, we hold that the decree of divorce changed the tenancy of the parties from that of equal owners of the community estate (La Tourette v. La Tourette, 15 Ariz. 200, Ann. Cas. 1915B, 70, 137 Pac. 426) to. that of equal owners as tenants in common in the property.
The effect of the former decree, viewed as an entirety, was therefore to dissolve the marriage bonds, award the custody of the children to defendant, with visitorial rights to plaintiff, and to invest the parties with the title to the former community
The defendant’s testimony, which can hardly be said to have been contradicted at all, tended to prove that the community estate was probably indebted for community debts beyond its ability to pay. Furthermore, the jury were not instructed that they were to make a division of the property as it existed at any time in kind. In fact, no rule whatever was announced for their guidance in arriving at the determination made. Nor is it pretended that the verdict and judgment are based upon an accounting. Under the evidence, the form of the interrogatories, and the entire failure to instruct the jury as to any rule for division of the property, it is very plain that in answering these interrogatories the jury did precisely what they were justified in assuming it was their duty to do, i. e., fixed a sum based exclusively upon their own conception of what it was fair and equitable the defendant should pay to plaintiff, without reference to a division or valuation of
While this error is outstanding, it is not the only instance in the voluminous record before us of error, to the prejudice qf the defendant here, on the trial. These we shall not pause to further consider because of our disposition of the case on the objections made in limine of the proceedings.
It is not contended by the defendant that the complaint does not set forth facts sufficient upon which to predicate the relief sought, so far as it discloses the conditions brought about by defendant to prevent the plaintiff from presenting any defense she might have had to the divorce complaint. See Graham v. Graham, 54 Wash. 70, 18 Ann. Cas. 999, L. R. A. 1917B, 405, 102 Pac. 891. But it is contended that, as the complaint does not allege that plaintiff actually had a valid and meritorious defense to the divorce action, it is insufficient upon which to predicate any relief. In an equitable action to set aside a judgment, secured upon due service of process, it is unquestionably the general if not the universal rule that the party seeking to set aside the judgment procured against him by the fraud of his adversary, by which he was prevented from presenting his defense, is bound as a prerequisite to relief to allege and prove that he had and has a valid and meritorious defense to the cause of action upon which the judgment complained of rests. Bernhard v. Idaho Bank & Trust Co., 21 Idaho, 598, Ann. Cas. 1913E, 120, and notes, 123 Pac. 481; Graham v. Graham, supra, and cases in L. R. A. 1917B, p. 427, notes; 23 Cyc. 1022. The reason of the rule is patent. One seeking to overthrow a judgment must show that he is damnified thereby, which cannot be the case if he is without
The application of this rule to the allegations of the complaint shows it to be fatally insufficient for want of any allegation or showing that the plaintiff ever had any defense to the original action for divorce. While it is alleged that, “by reason of the fraud, deception, coercion and intimidation practiced upon and perpetrated against the plaintiff herein by the defendant, his attorneys and agents, as hereinafter complained of, and for no other reason, this plaintiff refrained from defending in said cause, or introducing any evidence in her behalf therein,” it is not alleged that, if she had actually defended in the cause, she could have established the falsity of the allegations made in defendant’s complaint, or any defense thereto. And in this connection it is to be noted that plaintiff does not even attempt to assail the judgment in so' far as it dissolves the marital relations. In nowise does she seek the relief a predicate for which would be a valid and meritorious defense to the original action. The insufficiency of the complaint in the respect mentioned requires a reversal of the judgment.
But for another reason equally fatal to the maintenance of the proceedings this judgment cannot stand. That reason concerns the integrity of judgments and the general rule which forbids their impeachment in part only.
From the allegations of the complaint and the relief asked, it is apparent that the plaintiff seeks relief from the operation and effect of the divorce decree in so far only as it concerns the disposition of the property and the awarding of the custody of the children. No right to relief against the judgment dissolving the marriage is either shown or prayed
If the court in the former action had concluded that the defendant had not proved the allegations of his complaint charging cruelty, it would have been its duty to dismiss the cause. In that event, it could have made no order concerning the property or the children. Its powers to adjudicate concerning the community property, or to award the defendant the custody of the children, were incidental to its jurisdiction to decree the dissolution of the marital relation, and to be exercised only when such a decree was made. The change in the tenancy of the parties from that of owners of the community estate to that of tenants in common thereof was a result which followed by operation of law upon the granting of the decree making no specific disposition of the property. All this is apparent from the provisions of our Civil Code on the subject, from which we quote paragraph 3862, as it read at the time of the trial of the original action, and paragraph 3870 of that Code:
“The court pronouncing a decree of divorce from the bonds of matrimony shall also decree and order a division of the estate of the parties in such a way as to the court shall seem just and right, having due regard for the rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to compel either party to divest himself or herself of the title to separate property.” Paragraph 3862.
“In suits for divorce the court may make such orders concerning the care and custody of the minor children of the parties and their suitable maintenance during the pendency of the actiqn as may be deemed proper and necessary for the well-being of the children, and in the final judgment rendered in any such suit or in any suit for annulment of the marriage, the court may make- such disposition of, and provision for the minor children, as shall be deemed*569 most expedient under all circumstances, and for the present comfort, and future well-being of such children.” Paragraph 3870.
The language used in Ambrose v. Moore, supra, referring to the power of the court to dispose of the community property by its decree in the divorce proceedings, is apposite:
“The power to dispose of the property of the husband and wife is a mere incident of the power to grant-the divorce, and ordinarily that power cannot be exercised by another court and at another time or in an independent action.”
It follows that, as the former judgment dissolving the marriage was neither successfully impeached nor even attacked, the matters which it became necessary to adjudicate as an incident of such dissolution, the judgment not being avoided, should also stand unavoided. McCraney v. McCraney, 5 Iowa, 232, 68 Am. Dec. 702. Whether we view the complaint as a pleading insufficient in fact to avoid the former judgment, and therefore an unsuccessful direct attack, or .as a collateral attack, as such, the result must be the same. It is an attempt, without setting aside the former judgment, to “obtain another and independent judgment which will destroy the effect of the former judgment.” The proceedings are therefore within the rule which forbids a collateral attack to be made upon a judgment by a party thereto for any cause, including fraud, unless the judgment is void on its face. Tube City Min. & Mill. Co. v. Otterson, 16 Ariz. 305, L. R. A. 1916E, 303, 146 Pac. 203; Henderson v. Towle, ante, p. 377, 203 Pac. 1085.
That there are cases where a judgment may be impeached for fraud invalidating it in part only is true. Counsel for plaintiff have cited many such cases in opposition to the doctrine of McCraney v.
In Klaes v. Klaes, supra, a decree for alimony obtained by a husband in a suit for divorce was set aside in a suit brought for that purpose by the wife. The relief granted was based upon the facts that the husband had given false testimony concerning the land awarded to him as alimony, and that the title thereto was actually in the wife.
In McMurray v. McMurray, supra, the petition of the wife against the divorce decree alleged, amongst other matters, that the decree' depriving her of her full share in the community property was obtained by false testimony and concealment of assets on the part of the husband. Holding that the husband as a trustee for the wife was bound to good faith, and, in effect, that the property by reason of his fraudulent concealment had not been disposed of by the decree, the court set that portion of the decree aside and judged the wife entitled to the same share of the property which the defendant husband himself was entitled to retain.
In Trammell v. Trammell, supra, the decree, so far as it affected the custody of the minor children, being tainted with fraud, was set aside. The court said:
“The evidence is sufficient to show that a fraud was perpetrated upon the appellee by the appellant*571 in procuring the judgment awarding him the custody of the minor children.”
Holt v. Holt, supra, was a case of egregious fraud practiced upon the wife by the husband, whereby she was prevailed upon to obtain a decree of divorce, surrender her right to the custody of her children, and being “induced partly by the deceit practiced by defendant in misrepresenting to her the extent of his fortune” brought the suit and accepted an entirely inadequate and unfair provision. This result of the. fraud was remedied by the second decree.
In Ex parte Smith, supra, the court, setting aside the judgment for alimony without disturbing the original decree, said:
“The defendant’s dishonesty having left its mark upon that portion of the judgment only which undertook to respond to the plaintiff’s claim for alimony, that portion alone needed purging. The provision divorcing the parties was not tainted and there was no reason for disturbing it. If the reason for attacking the judgment had been furnished by some fact which touched upon the court’s authority to proceed at all, the judgment would have stood or would have fallen as an entirety, as in the Lewis case.”
Only in the case Ex parte Smith was there anything like a discursive examination of the legal or equitable principles which authorize a court to set aside a former judgment in part only. Without further analysis of these decisions, it is evident that they are not authority for the proposition that a decree may be set aside in part where the sole ground of impeachment of such decree is the fraud of the successful party in obtaining the decree at all. The distinction we have in mind is expressed in the language quoted from the case of Ex parte Smith, supra. In the case at bar, the plaintiff does not undertake to allege or prove that by defendant’s conduct she was deprived of the opportunity of presenting any
Plaintiff’s counsel depict the unhappy plight of their client thus forced to ask for a reuniting of the severed marital bonds as a prerequisite to the relief prayed for. But the duties of the marital relations might have proved an irksome burden to the parties before the divorce was granted, without opening up any legal avenue of escape. It is axiomatic that the mere unwillingness of husband and wife longer to continue in such relations is not in itself ground for divorce. Consent will not suffice. Some cause for divorce mentioned in the statutes must exist.
The defendant in this case, as is his right, insists that the former decree is in all respects valid and unaffected by any, fraudulent procurement or concealment on his part. He stands upon that decree and insists that he is entitled to all rights conferred upon him by its terms. We must rule that he is entitled so to do. The plaintiff’s position can only
The complaint being insufficient because it fails to allege a valid and meritorious defense to the original action, and the proceedings as a partial attack upon the original divorce decree not being maintainable, the judgment must be reversed, and the cause remanded to the court below with 'instructions to dismiss the complaint.
EOSS, O. J., and McALISTEE, J., concur.