Opinion
15331.
FEBRUARY 19, 1946.
Cancellation, etc. Before Judge Mallory C. Atkinson. Bibb Superior Court. August 23, 1945.
Hallie B. Bell, for plaintiff.
Bloodworth Bloodworth, for defendant.
1. "Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part." Code, § 37-220.
2. A wife voluntarily signed an acknowledgment of service and waiver of process with respect to a suit for divorce that was later to be prepared and filed against her by her husband, and after having signed such acknowledgment and waiver, left the State and made no investigation whatever as to the contents of the suit as later filed. The suit, as later prepared and filed by the husband, sought not only a divorce but also custody of the minor child of the parties, and judgment was rendered accordingly as to both matters in favor of the husband. The wife thereafter filed a suit in equity to set aside the judgment in so far as it awarded custody of the child to the father, alleging that the acknowledgment of service and waiver of process were made with the express understanding between the parties that only the question of divorce would be determined in such suit, and that the custody of the child was not to be included therein; but that (as further alleged) the husband thereafter breached this agreement and fraudulently sought and obtained a judgment awarding custody of the child to him in connection with the divorce decree. Held, that the petition showed such negligence on the part of the wife in failing to acquaint herself with the contents of the suit as to bar her right to the equitable relief sought, and that the court did not err in dismissing the petition on general demurrer.
No. 15331. FEBRUARY 19, 1946.
In October, 1944, Charles H. Phillips obtained in Bibb Superior Court a decree of divorce from his wife, Mrs. Alice K. Phillips, and in the same decree he was awarded custody of their minor child. The wife acknowledged service of his petition for divorce, waived process, and agreed for the case to be tried at the first term; such waiver and agreement having been signed before the suit for divorce was filed. Shortly thereafter, Mrs. Phillips left the State of Georgia, and after the divorce, she married again, her present name being Mrs. Alice K. Bach.
In July, 1945, Mrs. Bach filed the present petition in equity, in Bibb Superior Court, seeking to set aside so much of the decree as awarded the custody of the child to the father. The petition was dismissed on general demurrer, and Mrs. Bach excepted.
The petition alleged substantially the following: Petitioner and defendant were intermarried in due form of law on February 17, 1938, and lived together as husband and wife until June 15, 1944, at which time they separated. At the time of the separation there was, as the issue of the marriage, one male child, Charles A. Phillips, age about two and one-half years, who was in the custody and control of petitioner's parents, Mr. and Mrs. A. C. Kitchens, of Gray, Georgia, in Jones County.
The child was placed with petitioner's parents at the instance and request of petitioner, with the full knowledge and consent of defendant, and with the express understanding that such custody by petitioner's parents would not be disturbed in any way by said defendant.
After the said separation on June 15, 1944, petitioner desired to leave the State of Georgia temporarily, and both parties understood that they could no longer live together, and that a divorce would be the best way out. It was decided that, since petitioner was about to leave the State, it would be quicker and less troublesome for the defendant to sue petitioner for divorce, and as a result petitioner agreed to sign an acknowledgment of service before petitioner left, together with a waiver of process and an agreement that the return or August term, 1944, should be made the trial term. This agreement was made, nevertheless, with certain stipulations understood and expressly agreed upon between the parties, among which were: (a) That only the question of divorce would be decided between the parties. (b) It was expressly agreed that petitioner and defendant were in agreement as to the custody of petitioner's said son; that the custody of her son was not to be included in the proposed divorce suit; that said minor child should be and remain in the undisturbed custody and possession of petitioner's parents, and its custody and possession would not be awarded to either petitioner or defendant.
Upon the faith of said agreement and under the stipulations above set out, and before the said suit for divorce was filed in court, and before the suit was even drawn up or submitted for inspection to petitioner, and relying upon the good faith and integrity of defendant, petitioner signed said acknowledgment of service, together with waiver of process and waiver of the first term. Said waiver is attached to said suit for divorce.
Shortly after signing said acknowledgment of service, in advance, as aforesaid, of the filing of said suit, petitioner departed from the State of Georgia and remained beyond the limits of the State for several months, relying in good faith upon the agreements between petitioner and said defendant.
Almost immediately after petitioner's departure from the State, defendant repudiated his agreements with petitioner, without any notice whatever to her, and on June 30, 1944, drew up and filed in the Superior Court of Bibb County, Georgia, a libelous and fraudulent petition for divorce, falsely accusing her of various acts of misconduct with other men, and praying for the custody of her child. Upon the strength of said fraudulent petition, a rule nisi was issued by Honorable Malcolm D. Jones, judge of said superior court, to show why the prayers in the divorce suit should not be granted, and why the custody, possession, and control of petitioner's child should not be granted to the father.
No service of said rule was made upon petitioner, and she was ignorant both as to the issuance of said rule and as to the date set for the hearing of same.
On July 28, 1944, an order was passed awarding temporary custody of said child to defendant, and on October 9, 1944, defendant obtained a final verdict of divorce, and in the decree was awarded permanent custody of petitioner's child, said decree being without notice or knowledge to, or on the part of, petitioner, and contrary to the agreements, stipulations, and conditions of her acknowledgment of service, and the application for said award was false and fraudulent.
The petition contained the following prayers: That said decree granted in said divorce case be set aside, rescinded, cancelled, and declared null and void; that the provision in said decree awarding the custody of said child to the defendant be stricken, cancelled, and set aside; that the possession, custody, and control of said child be restored to petitioner's said parents, Mr. and Mrs. A. C. Kitchens; that petitioner be allowed joint custody and control with her said parents over said child; and for general relief and process.
"The judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the petitioner." Code, § 37-219. "Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part." Code, § 37-220. See also § 110-710.
In Smith v. Smith, 191 Ga. 675 ( 13 S.E.2d 798), a case quite similar to the instant one, the husband sought to enjoin enforcement of a contempt order for nonpayment of a judgment for alimony, and sought to set aside the alimony judgment on the ground of alleged fraud. Attached to the petition on which the judgment for alimony was rendered, was a written acknowledgment of service and waiver of process. The husband, seeking to set aside the alimony judgment, alleged that his acknowledgment of service was intended for the divorce suit only, and that the fraud consisted in the fact that the suit was for divorce and alimony. It was held by this court that, under the facts shown, the petitioner (defendant in the alimony suit) was conclusively presumed to have known the contents of that suit, and if he suffered an unwarranted judgment, it was due to his own negligence, and he was bound thereby. In Ketchem v. Ketchem, 191 Ga. 140, 142 ( 11 S.E.2d 788), it was said "that a person is generally committed to the contents of an instrument which he signs, even though he did not have actual knowledge thereof, in the absence of fraud or some other circumstance relieving him of the imputation of inexcusable indifference or neglect."
In the instant case, the petitioner voluntarily signed an acknowledgment of service and waiver of process with respect to a suit for divorce that had not even been prepared. She left the State, and made no investigation whatever as to the contents of the suit as later filed. She must have known that the custody of the child would be a proper matter for determination by the court in case of divorce. Code, § 30-127. While it is alleged that the husband breached his agreement not to submit the question of custody and not to include that issue in his divorce suit, it does not appear that he was guilty of any fraud or artifice whereby the wife was prevented from making such investigation as to the contents of the suit as she might desire or be inclined to make. A judgment may be set aside for fraud, accident, or mistake — yes, but it must be unmixed with the negligence or fault of the petitioner. In the instant case, it cannot be said that the wife was without fault or negligence. As a matter of fact, the contrary affirmatively appears. The case differs on its facts from Young v. Young, 188 Ga. 29 (3) ( 2 S.E.2d 622), where, according to the allegations, the defendant was prevented by acts of coercion and duress on the part of the plaintiff from appearing and pleading in the divorce case. No such state of facts was shown in the instant case. Nor do any of the other cases cited for the plaintiff in error support the view that the petition here stated a cause of action. The court did not err in sustaining the general demurrer and dismissing the petition. Compare Lewis v. Foy, 189 Ga. 596 ( 6 S.E.2d 788); Karpas v. Candler, 189 Ga. 711 (2) ( 7 S.E.2d 243); Livingston v. Barnett, 193 Ga. 640 (4) ( 19 S.E.2d 385).
Judgment affirmed. All the Justices concur.