Littlefield v. Littlefield

199 Mo. App. 456 | Mo. Ct. App. | 1918

ELLISON, P. J.

Defendant and plaintiff were formerly husband and wife. They were divorced on his petition, for her fault, after personal service was had. More than three years afterwards she began the present action by filing her bill in equity to set aside the 'divorce on charges of fraud, viz., that he wrongfully influenced her to make confession of adultery and to consent t,o a divorce, he, all the while, living with her as his wife, and continuing marital relations with her after the decree of divorce was granted. There was included in the prayer of her bill a demand that she be granted “an adequate amount of damages, alimony, support, maintenance, counsel fees, expenses and such other relief,” as was proper. The trial court dismissed the bill and she has brought the case here for relief.

After the divorce was granted 'to him, he again married; and since the trial of this cause, and while her appeal was pending, and after the cause had been submitted to this court, she also married.

It has been ruled that a judgment for divorce, on a fictitious cause, may be set aside in a court of equity for a fraud practiced on the court as to jurisdiction of the person of the defendant. [Dorrance v. Dorrance, 242 Mo. 625 (overruling Salisbury v. Salisbury, 92 Mo. 683.] Whether that case would ordinarily have been applicable to this, we need not say. But we are of the opinion that when plaintiff married, she waived the fraud, accepted the divorce and abandoned that part of the present action. The judgment for divorce in¡ favor of defendant now stands unaffected by the charges of fraud in its rendition.

But plaintiff insists that though she be denied that part of her bill wherein she seeks to annul the divorce, she should be granted that part wherein she asks damages adequate to relieve and maintain her.' This is put upon the ground that, though, as a matter of public policy, a divorce should not be annulled, even when obtained by fraud, yet a separate action may be maintained for the defrauded wife’s property rights. This view is sustained in Bay v. Bay, 85 Ohio St. 417. For a greater reason such relief would be granted in those jurisdictions where the divorce itself may be set aside for fraud. [Clay v. Robertson, 30 Okla. 758.] But the difficulty with plaintiff’s case is the status she fixed for herself in recognizing the validity of the divorce by remarrying. By that, act the divorce, in effect, was advanced to the plane of judicial propriety on good grounds, without fraud. The divorce must therefore be considered as ending all claim plaintiff may have had on defendant’s •property by reason of formerly having been his wife. [Donaldson v. Donaldson, 249 Mo. 228, 242-245.] We think In re Herman J. Christiansen, 17 Utah, 412, not applicable.

The judgment is affirmed.

All concur.