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District Court of Appeal, Fourth District, California.


Civ. 4820.

Decided: June 18, 1954

Vernon F. Bennett, San Diego, for appellants. John R. Sorbo and John T. Holt, San Diego, amicus curiae on behalf of respondent.

It is alleged in the complaint herein that plaintiff and defendant were married in Yuma, Arizona, on July 7, 1950, and separated July 15, 1952; that defendant treated plaintiff with extreme cruelty and that there was one child born the issue of said marriage. Plaintiff sought a divorce, custody of the child, and an order for its support. Defendant answered and at the same time filed a cross-complaint for annulment of the marriage in which he alleged in the first cause of action that on the 7th day of July, 1950, plaintiff had another husband living, from whom she was not divorced, and in the second cause of action that defendant was induced to consent to the marriage by plaintiff falsely representing to him that she was divorced from her former husband and by concealing from defendant the fact that she was then pregnant. In a third cause of action (for divorce) defendant alleged that there were no children born the issue of the marriage of July 7, 1950; that plaintiff was guilty of extreme cruelty toward defendant and cross-complainant. On September 15, 1952, an order to show cause was issued and plaintiff was awarded custody of the minor child. On October 7, 1952, plaintiff, with the knowledge and consent of her then attorney, executed a written stipulation that her complaint might be withdrawn and that the action might proceed to trial upon the cross-complaint without further notice to her, and be heard on the default calendar at any date convenient to the court. On October 10, the trial court signed an order for payment of plaintiff's attorney's fees and on October 17, 1952, the matter was heard by the court. The decree recited that the plaintiff, by an agreement in writing with defendant, had relinquished her right of control of the child to defendant; that defendant had agreed to care for and support said child and had agreed to waive all claims against plaintiff. The court then found that all of the allegations in the first and second causes of action of the cross-complaint were true and ordered the marriage of July 7, 1950, annulled. It was further decreed that the defendant should have the custody and control of the child.

On December 19, 1952, plaintiff Dorothy Swycaffer filed an affidavit praying that the decree of annulment previously entered be modified to provide that the custody of the child be awarded to her and stating that she had been previously married to one George Kent and separated from him in the latter part of June, 1950; that Kent had informed her that he was obtaining a divorce on July 1, 1950; that defendant knew of this marriage and believed, as she did, that they were free to marry on July 7, 1950; that about a week after the marriage she discovered that she was pregnant by Kent and informed the defendant of this fact; that she was induced to enter into the agreement giving defendant the custody of the child by threats made by the defendant that he would file a bigamy charge against her if she did not sign it. The court issued an order to show cause why the decree of annulment should not be modified and the custody of the child given to the mother. At the conclusion of the hearing on this order and on January 29, 1953, the court modified the judgment by striking therefrom certain provisions relating to plaintiff's ability to care for the child, the execution of the agreement, the provisions thereof relating to custody, and particularly that portion of the decree awarding custody of the child to the defendant.

The court, in its order of modification, reaffirmed its findings as to the truth of the allegations in the first and second causes of action in the cross-complaint and its judgment awarding the cross-complainant Joe Swycaffer a decree of annulment. The court further held that the attorney for the defendant Joe W. Swycaffer knowingly and wilfully deceived and defrauded the court into awarding its decree as of October 17, 1952, relative to all portions of the judgment then rendered, which were stricken from it; that it had no power or jurisdiction to award the child to the defendant for the reason that he was not the father of said child and further that the custody of said child ‘was not an issue within the pleadings of the above case, nor was the contract referred to hereinbefore within the issues of said case’; that defendant's attorney knew these facts and withheld the true information and facts of the case from the court for the purpose of obtaining a fraudulent judgment so that the custody of the child would be awarded to the defendant; that the court would not have awarded the custody of said child or approved the said contract if it had not relied upon the conduct of defendant's attorney.

On March 11, 1953, the defendant and his attorney filed a motion to strike that portion of the order of modification relating to the conduct of the attorney and the reasons stated by the court for its order respecting custody of the child. This motion was denied. Defendant and his attorney, in propria persona, appeal from the order of January 29, 1953, modifying the judgment and striking portions thereof and from the minute entry and order dated March 20, 1953, denying the motion to strike that portion of the order relating to the conduct of defendant's attorney and its stated reasons for awarding custody of the child to defendant.

It is at once apparent that the child involved was conceived during the marriage of plaintiff and Kent while they were cohabiting. Under such circumstances the child is indisputably presumed to be legitimate and evidence cannot be received to the contrary. Hill v. Johnson, 102 Cal.App.2d 94, 96, 226 P.2d 655. Furthermore, Kent was not made a party to the proceeding and he was an indispensable party to any proceeding whereby permanent custody of his child was to be awarded to another. Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 265, 73 P.2d 1163. Courts are without jurisdiction to make a permanent custody order awarding the child to another without notice to each of its parents so that such parents may appear and protect his or her rights. Titcomb v. Superior Court, 220 Cal. 34, 40, 29 P.2d 206. As soon as the trial court herein discovered that the defendant was not the father of the child involved and that the custody of the child was not an issue under the allegations of the first two causes of action stated in the cross-complaint, he immediately issued an order to show cause and after hearing thereon, modified the judgment by striking the erroneous custody provision therefrom.

The custody order in the decree was void upon its face. Such a judgment may be set aside by the court at any time and it is immaterial how the invalidity is called to its attention. Baird v. Smith, 216 Cal. 408, 410, 14 P.2d 749. Furthermore, the evidence presented to the court at the hearing on the order to show cause why the judgment should not be modified was sufficient to permit the court to modify the erroneous custody order made on the ground that extrinsic fraud was practiced upon it. If defendant's attorney had revealed all of the facts to the court, it would doubtless have refused to award the child to defendant. Such conduct upon the part of defendant's attorney constitutes extrinsic fraud and justified the court in modifying the order made. Daut v. Daut, 98 Cal.App.2d 375, 379, 220 P.2d 63. The suppression of that which is true, by one having knowledge or belief of the fact, constitutes ‘actual fraud’ whether suppression is intentional or accidental. Snyder v. Security First Nat. Bank, 31 Cal.App.2d 660, 88 P.2d 760; Civil Code, § 1572.

As was said in Cardozo v. Bank of America, etc., 116 Cal.App.2d 833, 838, 254 P.2d 949, 952, quoting from Larrabee v. Tracy, 21 Cal.2d 645, 134 P.2d 265, and Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 210, 92 P. 184:

“A common case of extrinsic fraud is where a party is deprived of his opportunity to be heard ‘by some fraudulent artifice or breach of fiduciary duty on the part of the prevailing party.’ In 3 Freeman on Judgments, supra, section 1235, pages 2575–2576, the author declares that if there is a duty to speak because of a trust or confidential relation, a failure to do so is obviously a fraud for which equity may afford relief whether such fraud be regarded as extrinsic or an exception to the extrinsic fraud rule.' ‘Fraud or mistake is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court.’ Westphal v. Westphal, 20 Cal.2d 393, 397, 126 P.2d 105, 107.'

We are not here passing upon the question of whether the acts and conduct of defendant's attorney were wilfully and deliberately done with intent to deceive the court or whether the evidence justified the trial court's holding in that respect. It does appear, however, that the court was deceived and misled and there is sufficient evidence to support a finding of extrinsic fraud.

The minute entry and formal order of March 20, 1953, denying the motion to strike the portion of the order modifying the judgment is not an appealable order. Litvinuk v. Litvinuk, 27 Cal.2d 38, 43–44, 162 P.2d 8; Bixby v. California Trust Co., 33 Cal.2d 495, 499, 202 P.2d 1018; Oppenheimer v. City of Los Angeles, 104 Cal.App.2d 545, 550, 232 P.2d 26.

The order modifying the judgment dated January 29, 1953, is affirmed, and the appeal from the minute entry and order dated March 20, 1953, is dismissed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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