Summary
noting that a judgment remained within the breast of the court for 30 days, during which it could be set aside on the court's own motion
Summary of this case from Gillis v. FrazierOpinion
SC 1081.
May 8, 1975. Rehearing Denied June 19, 1975.
Appeal from the Circuit Court, Madison County, John W. Green, J.
Watts, Salmon, Roberts, Manning Noojin, Huntsville, for appellant.
Bills in chancery must set forth, not the evidence, but every material averment of fact necessary to complainant's right of recovery. So complete must be the averments of fact, that on demurrer, or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. Relief can only be granted on allegations and proof; and the latter will never be allowed to supply omission or defects in the former. Allegations, admitted or proved, are the only premises which will uphold a chancery decree. Evans v. Evans, 252 Ala. 636, 42 So.2d 589; McDonald v. Mobile Life Insurance Company, 56 Ala. 468, 470; Birmingham Gas Company v. City of Bessemer, 250 Ala. 137, 33 So.2d 475; Brue v. Vaughn, 241 Ala. 322, 2 So.2d 396. A bill to vacate a divorce decree, to be sufficient, must not rest on simple averments that there was a valid defense of which defendant had no knowledge until after judgment, but it must also appear from the averred facts that complainant was prevented from making his defense by fraud, accident, or act of the opposite party without fault or neglect on his part. Evans v. Evans, 252 Ala. 636, 42 So.2d 589, supra; St. John, et al. v. Campbell, 250 Ala. 427, 34 So.2d 585; Headley v. Bell, 84 Ala. 346, 347, 4 So. 391, 392. The false assertion of facts constituting elements of an equitable right and supported by perjured testimony is intrinsic fraud, and cannot be retried in a proceeding commenced by a bill in the nature of a bill of review. Lindsey v. Lindsey, 48 Ala. App. 495, 266 So.2d 298 (1972); Spencer v. Spencer, 254 Ala. 22, 47 So.2d 252; Heller v. Heller, 272 Ala. 429, 132 So.2d 251; Hawkins v. Sanders, 260 Ala. 585, 72 So.2d 81; Anderson v. Anderson, 250 Ala. 427, 34 So.2d 585; Miller v. Miller, 238 Ala. 228, 189 So. 768; Hooke v. Hooke, 247 Ala. 450, 25 So.2d 33; Anno., 49 A.L.R. 1219. A party who seeks relief against a judgment or decree of a court of competent jurisdiction on grounds of fraud, accident, or mistake, must aver and prove that he was without fault or neglect in the matter, and that he was ignorant of the fraud, not only at the time the judgment was rendered, but also during all the time allowed him for a new trial, or that he was prevented from making his motion for a new trial by accident, fraud or mistake, unmixed with negligence on his part. Wright v. Wright, 230 Ala. 35, 159 So. 220; Evans v. Evans, 252 Ala. 636, 42 So.2d 589, supra; Evans v. Wilhite, et al., 167 Ala. 587, 591, 52 So. 845, 847; Hooke v. Hooke, 247 Ala. 450, 25 So.2d 33; Sharp v. Edwards, 203 Ala. 205, 206, 82 So. 455. Condonation of a ground for divorce is a matter to be pleaded and proved in defense. Davis v. Davis, 46 Ala. App. 438, 243 So.2d 522; Harrison v. Harrison, 19 Ala. 499; Chamberlain v. Chamberlain, 245 Ala. 105, 16 So.2d 8; Brown v. Brown, 219 Ala. 104, 121 So. 386; Turner v. Turner, 217 Ala. 621, 116 So. 918; Brice v. Brice, 268 Ala. 290, 105 So.2d 872; George v. George, 255 Ala. 190, 50 So.2d 744.
Edward L. Hopper, Huntsville, for appellee.
A failure to appeal even though the grounds of error were available at that time does not preclude a subsequent bill of review upon these grounds when they are apparent on the record. Barrow v. Lindsey, 230 Ala. 45, 159 So. 232; Nesbitt v. Hagan, 265 Ala. 213, 90 So.2d 217. On motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) . . . . . Rule 60(b), Alabama Rules of Civil Procedure. Generally speaking, pending proceedings for a divorce the parties must live separate and apart, and voluntary cohabitation of the parties pending the proceedings ordinarily operates as a bar to a divorce or judicial separation and as a condonation of the misconduct complained of. Wright v. Wright, 153 Neb. 18, 43 N.W.2d 424 (Cites Huffine v. Huffine); Berman v. Berman, 277 App. Div. 560, 101 N.Y.S.2d 206; Ross v. Ross, 4 Misc.2d 399, 149 N.Y.S.2d 585; McCarthy v. McCarthy, 199 Misc. 680, 103 N.Y.S.2d 808; Baumgartner v. Baumgartner, 16 Ill. App.2d 286, 148 N.E.2d 327; Givens v. Givens, 304 S.W.2d 577 (Tex.Civ.App.); Gibson v. Gibson, 207 Va. 821, 153 S.E.2d 189; Harn v. Harn, 155 Ga. 502, 117 S.E. 383. If condonation occurs pendente lite, the cause of action in the pending suit is destroyed. 93 . . . . . and the suit abates 94 27A C.J.S. Divorce § 59d, page 200; Byrne v. Byrne, 93 N.J. Eq. 5, 114 A. 754; Silvaggi v. Silvaggi, Com.Pl., 37 Erie Co. 92 (Pa.); McKee v. McKee, 107 N.J. Eq. 1, 151 A. 620; Smith v. Smith, 139 So.2d 813 (La.App.); Wilson v. Wilson, 99 N.J. Super. 427, 240 A.2d 188; Wilson v. Wilson, 14 Ohio App.2d 148, 237 N.E.2d 421; Hagan v. Hagan, 208 Ga. 315, 66 S.E.2d 714; Collins v. Collins, 194 La. 446, 193 So. 702; Huffine v. Huffine, 74 N.E.2d 764 (Ohio Com.Pl.); Walton v. Walton, 218 Ga. 737, 130 S.E.2d 593; Clance v. Clance, 219 Ga. 584, 134 S.E.2d 809. Where wife, by means of extrinsic fraud, as found by trial court, practiced upon husband and the court, surreptitiously secured entry of interlocutory and final decrees of divorce after there had been a reconciliation between the spouses, trial court had jurisdiction to vacate such decrees. Raps v. Raps, 20 Cal.2d 382, 125 P.2d 826; Britton v. Bryson, 216 Cal. 362, 14 P.2d 502; McGuinness v. Superior Court, 196 Cal. 222, 237 P. 42, 40 A.L.R. 1110.
The facts giving rise to the dispositive issue presented on this appeal are essentially undisputed. Melvin Crisco left his household and his wife, Hilda Crisco, in early November, 1971. On November 3, 1971, she filed a divorce complaint against him on the grounds of cruelty, which suit was personally served on the defendant November 10, 1971. Mr. Crisco returned home shortly thereafter where he stayed until December 17, 1972, when he again moved out. An interlocutory decree pro confesso was entered December 18, 1972, and a final divorce decree was rendered December 27, 1972. Two days thereafter Mr. Crisco was informed of the divorce decree and filed an application for rehearing January 9, 1973, which was originally set for hearing by order of the court February 7, 1973, and later continued to March 7, 1973, on which date the trial court lost jurisdiction of this cause.
Instead of prosecuting this direct attack on the final decree of divorce (the application for rehearing), Mr. Crisco filed a bill in the nature of a bill of review March 13, 1973. This new and independent action, collaterally attacking the final judgment of divorce, alleges in substance, as did his petition for rehearing, that he "was deceitfully and fraudulently led to believe by his wife that the divorce action commenced by her would not be prosecuted." His claim of fraud is further supported by the allegation that the parties had reconciled and resumed their marital relations to a point in time within two days of the granting of the interlocutory decree.
The bill also alleges that Mrs. Crisco practiced fraud on the court in that she failed, through her testimony in support of her bill for divorce, to inform the court that she and her husband lived together from December, 1971 — shortly after the bill was filed — to December 17, 1972 — shortly before the granting of the divorce decree. Such an allegation, which she was duty bound to make, says Mr. Crisco, would have constituted condonation of her alleged ground for divorce — physical cruelty — and thus she fraudulently failed to disclose facts which, if revealed, would have constituted a legal defense to the relief sought.
The question presented is: Where the challenged final decree of divorce was rendered, motion for a new trial filed and subsequently abandoned, and a bill in the nature of a bill of review was filed all prior to July 3, 1973 (the effective date of ARCP), and where the trial was held and the final decree granting relief thereunder was rendered in June, 1974, did the trial Court err in assuming jurisdiction of this latter cause and in holding the former judgment null and void? We hold that, although unaffected by ARCP, Rule 60(b), the trial Court did not err in granting the relief sought by complainant in the bill in the nature of a bill of review. We affirm.
As already shown, Mr. Crisco filed an application for rehearing, the only method permitted in equity at that time, on the ground of fraud, seven days after he learned that the divorce decree had been rendered. By so doing, he called the attention of the court to the alleged fraud and, thus, the allegation of fraud was apparent on the face of the record.
But he was suddenly faced with a dilemma caused by a quirk in our law. The suit for divorce was in equity. The record would show authentic service, testimony, a decree pro confesso and a final decree, all in proper form and regular on the face of the record. The trial Court had thirty days from December 27, 1972, to set the decree aside because the decree was in the breast of the Court for that period. When the Court took no action in the thirty days, Mr. Crisco had only the application for rehearing on which to rely.
If the Court denied his application for rehearing, Mr. Crisco would have been at his row's end. Had he been permitted to make a motion for a new trial, and he could have in a case on the law side, he could have appealed the denial of the motion and argued any ground of the motion appeal. But his case was in equity, and Equity Rule 62 provided that "No appeal will lie from such order [granting or denying an application for rehearing] unless it modifies the decree." Since he had alleged the fraud in his application for rehearing, this charge was on the face of the record and he would be faced with a defense of res judicata in any further proceeding.
Not only was Mr. Crisco barred from appealing from an order denying the rehearing under Equity Rule 62, but this Court has held many times that such an order or decree is not subject to review on an assignment of error raising that point on appeal from the final decree. Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So.2d 238; Appeal and Error, 110, 870(6).
Mr. Crisco was, therefore, likely to be denied a right of appeal merely because the action was originally of an equitable nature and was tried in a court of equity which, at that time, had no such thing as a procedure for a new trial. It would be so until July 3, 1973 (the effective date of ARCP), when new trials could be sought whether in cases on the law side or in equitable matters. Rule 60(b). We agree with appellant that Rule 60(b) is not applicable here.
The distinction between the effect of the old system and the new rules is pointed out in the Committee Comments to Rule 60(b). For a clear and accurate summary of the purpose of Rule 60(b), see Judge Gewin's opinion in Bankers Mortgage Company v. United States, 423 F.2d 73, 77-79 (5th Cir. 1970).
Mr. Crisco abandoned his application for rehearing and filed his bill in the nature of a bill of review on March 13, 1973. The filing of this independent action was his only chance of having the alleged fraud reviewed on appeal if the trial Court did not set aside the decree for fraud.
This situation cannot arise again because new trials now apply in what were formerly equity cases, but we are not willing to hold that the abandonment of the application for rehearing in this case under these circumstances is a bar to the filing of a bill in the nature of a bill of review when the fraud was apparent on the face of the record. We now proceed to discuss that feature of the case.
A court is not without jurisdiction to exercise its inherent power to set aside and vacate at any time a judgment because of supervening invalidity based on fraud practiced on the court by a party in the procurement of the judgment apparent on the face of the record. See Doby v. Carroll, 274 Ala. 273, 147 So.2d 803 (1962); Holden v. Holden, 273 Ala. 85, 134 So.2d 775 (1961); McDonald v. Lyle, 270 Ala. 715, 121 So.2d 885 (1960); Vaughan v. Vaughan, 267 Ala. 117, 100 So.2d 1 (1958); Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27 (1956); Capps v. Norden, 261 Ala. 676, 75 So.2d 915 (1954); Robinson Co. v. Beck, 261 Ala. 531, 74 So.2d 915 (1954), and Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116 (1943).
For an excellent discussion of the available remedies against a final judgment, see Morgan, Alabama Trials and Appeals, Chap. 5, p. 461 et seq. (1966).
A natural and logical extension of this proposition is the holding of this Court in Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961). There, in upholding the lower court's order vacating an original divorce decree, the rule was laid down to the effect that where jurisdiction of the court was fraudulently invoked by the parties and this fact became apparent in a subsequent proceeding, although neither party attacked the validity of the original decree which was regular on its face, the court is empowered ex mero motu to set aside that decree.
While the facts on which Hartigan is based are restrictive, the principle supportive of its holding is not so limited. That principle authorized the trial Judge in the instant case, upon discovery of facts not revealed until the filing of the petition for rehearing, to correct on its own motion the fraudulent use of the judicial process. We hold that the action of the trial Court vacating the original decree of divorce and ordering a new trial was both necessary and justified in the exercise of its inherent power to protect the integrity of its judicial proceedings.
Affirmed.
HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.