116 So. 2d 448 | Fla. Dist. Ct. App. | 1959
Plaintiff has appealed from an order dismissing a bill of complaint in the nature of a bill of review to set aside a decree of divorce entered in the Circuit Court of Dade County, Florida, on January 9, 1946. The order dismissed the cause with prejudice and without leave to amend.
The essential facts as alleged in the complaint are that Bernarr Macfadden, now de
The order does not indicate the ground upon which the chancellor based the dismissal, but since the record in this cause discloses only the motion to dismiss of the appellee, Jonnie Lee Macfadden Ferguson, upon the ground that the complaint failed to state a cause of action, we must assume that such ground was the basis of the chancellor’s order.
The appellant seeks reversal of the chancellor’s order, relying mainly upon the authority of Dye v. Dolbeck, 114 Fla. 866, 154 So. 847. We feel that the Dye case is distinguished from the case at bar since in the former, it would appear that a petition or motion in the original divorce proceedings was filed within three months after the entry of the divorce decree. This, in effect, was a direct rather than collateral attack upon the decree and one which we think the chancellor there was perfectly justified in entertaining. In the case at bar, the appellant seeks to collaterally attack the decree some thirteen years after its rendition upon grounds which constitute intrinsic rather than extrinsic fraud. The rule is and has been that those issues that could or have been litigated in the proceedings themselves are not sufficient grounds to collaterally attack a decree which otherwise appears to be valid on its face. See Matsis v. Matsis, 155 Fla. 786, 21 So.2d 545; Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514; Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872. As opposed to intrinsic fraud, the bill of complaint does not, in our opinion, allege facts which would constitute extrinsic fraud such as the deceased husband’s fraudulently keeping the appellant from defending the action, keeping her in ignorance of the proceedings, or other misconduct that would deprive the wife of an opportunity to have defended the action. See 19 Fla. Jur., Judgments and Decrees, § 431.
We have carefully reviewed the allegations of the complaint, considered the briefs as well as oral argument and conclude, as
Accordingly, the order appealed from should be and it is hereby affirmed.
Affirmed.