HOWARD v. HOWARD (1945)

Plaintiff sued to establish as a foreign judgment a Nevada decree of divorce and to recover sums due under the decree which were ordered paid plaintiff in accordance with a property settlement. The defendant filed an answer and cross-complaint in which he pleaded two separate defenses—that the money portions of the Nevada judgment lapsed through its specific terms because of the subsequent marriage of plaintiff with one Gerald Melone, and that the property settlement was procured by the fraud of plaintiff in that she represented to defendant that she was a woman of good moral character and a faithful wife and mother whereas during coverture and prior to the execution of the agreement she had repeatedly committed acts of adultery with numerous men, four of whom were named in the pleading. The trial court sustained a demurrer to the answer and cross-complaint without leave to amend, struck out all material portions of the pleading relating to the defense of fraud, and entered judgment for the plaintiff.

The charge of a subsequent marriage was based upon allegations of cohabitation in Mexico over a period of several months which was assumed to have consummated a common-law marriage, but appellant does not press for a ruling on that portion of the order. On the issue of fraud the defendant's appeal from the resulting judgment presents these three questions: (1) Is the attack upon the Nevada decree direct or collateral? (2) Is the alleged fraud extrinsic or intrinsic? (3) May a party to a suit for divorce attack the money portions of the decree and permit the rest of the decree to stand?

A brief statement of facts will suffice. The parties were married in 1925 and are the parents of three children. In August, 1938 the property settlement was executed and the plaintiff went to Reno, Nevada, where, on October 21, 1938, she was granted a divorce upon an uncontested hearing. The decree adopted the property settlement agreement through which the parties were given joint custody and control of the children and defendant agreed to pay to plaintiff the sum of $1250 each month for the maintenance of herself and the minor children until she should remarry, and to pay additional sums for the support of the children. (It is stated in the appellant's brief and not denied that the children were taken from the custody of respondent by a final judgment of another superior court and the custody awarded to their paternal grandparent. The defendant's obligation to support the children is not involved in this proceeding.)

The attack upon the Nevada decree is direct and not collateral. Concededly there is some confusion in the decisions as to when an attack upon a judgment is direct and when it is indirect, but there is not the same uncertainty as to when it is collateral. Thus, ‘where an action is brought upon a judgment and the defendant sets up the invalidity of the judgment as a defense, this is a collateral attack upon the judgment.’ Rest.Judgments, § 11, p. 66. But, where proceedings are taken in the action in which the judgment is rendered to have the judgment vacated it is a direct attack upon the judgment. Id., § 11, p. 65. The character of the attack, whether direct or collateral, is thus determined on the basis whether the attack is made in the same proceeding or in an independent suit. Our system of pleading calls for some qualification of these general rules. We may start with the precept stated in Title Ins., etc., Co. v. California Dev. Co., 171 Cal. 173, 208, 152 P. 542, 557, that: ‘It is elementary that the courts of this state may, in an equitable proceeding, inquire whether a judgment valid on its face was obtained by fraud. Sometimes such judgments may be set aside, but even in cases where this relief cannot be had a court of equity may—‘prevent an inequitable advantage being taken of it (the judgment) by adjudging the guilty beneficiary or his successor with notice a trustee for the defrauded party.” And in Parsons v. Weis, 144 Cal. 410, 415, 77 P. 1007, 1010, it is said that ‘an attack upon a judgment on the ground that it was procured by fraud is a direct attack, since the establishment of the fraud shows that no judgment has been rendered.’ In the early case of Eichhoff v. Eichhoff, 107 Cal. 42, 48, 40 P. 24, 25, 48 Am.St.Rep. 110, it was said that ‘when an action is brought in a court of equity to set aside a judgment at law, the attack, although not collateral is always indirect.’ See to similar effect Bergin v. Haight, 99 Cal. 52, 56, 53 P. 760; Caldwell v. Taylor, 218 Cal. 471, 475, 23 P.2d 758, 8 A.L.R. 1194; Patterson v. Almond, etc., 40 Cal.App. 285, 289, 180 P. 823; Borg v. Borg, 25 Cal.App.2d 25, 30, 76 P.2d 218; Assets Corp. v. Perrin Properties, 48 Cal.App.2d 220, 226, 119 P.2d 375.

The cases all support the doctrine that in this state where there is no separation of the courts of law and the courts of equity a party may attack a judgment on the ground that it was obtained by extrinsic fraud and that such attack is not collateral whether made in the same proceeding or in a separate suit in equity. This is made clear by the provisions of section 442 of the Code of Civil Procedure which permit a defendant who seeks affirmative relief against a party ‘relating to or depending upon the contract * * * upon which the action is brought’ to file a cross-complaint. In other words ‘he may abide his time, and when enforcement is sought against him excuse himself from performance by proof of the fraud.’ In re Estate of Cover, 188 Cal. 133, 141, 204 P. 583, 587.

The foregoing relates to those cases where the fraud alleged is extrinsic rather than intrinsic. The distinction is given with some qualifications in Rest., Judgments, § 118, p. 571, ‘The distinction between the types of situations in which equitable relief will be given and those in which it will not be given, has sometimes been expressed by saying that equity will not relieve for fraud which leads to an erroneous judgment after a trial which is otherwise fair, but only where a party has been prevented from having a reasonably fair trial. The first situation has been described as resulting from intrinsic fraud or error for which no relief will be given; the second situation has been described as resulting from extrinsic fraud, error, or misfortune, for which relief will be granted.’ A precise statement is found in the leading case of Pico v. Cohn, 91 Cal. 129, 133, 25 P. 970, 971, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159, where it is said: ‘That a former judgment or decree may be set aside and annulled for some frauds there can be no question, but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy. What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in the books are such as these: Keeping the unsuccessful party away from the court by a false promise of a compromise, or purposely keeping him in ignorance of the suit; or, where an attorney fraudulently pretends to represent a party, and connives at his defeat or, being regularly employed, corruptly sells out his client's interest.’

Here the alleged fraud consisted of the misrepresentations of the plaintiff in the divorce action before the action was commenced and before the property settlement was executed that she had been a faithful wife and mother and the concealment from the defendant that she had committed various acts of adultery in her own home and at other places during coverture. In support of these allegations the appellant herein contends that if he had known of those acts he would not have executed the agreement and particularly would have contested respondent's right to the joint custody of the minor children and the payment to her of a portion of the monthly sums for their maintenance and support. The authorities cited all support the conclusion that the acts alleged were acts of extrinsic fraud which may be proved in defense of the present action. A case supporting appellant's argument that the alleged acts constitute fraud is Murdock v. Murdock, 49 Cal.App. 775, 194 P. 762, where a wife obtained a judgment setting aside her gift to the husband on the ground of fraud which consisted of his adultery in face of protestations of faithfulness. In affirming the judgment it was said (49 Cal.App. at page 786, 194 P. at page 767), ‘Indeed, from the authorities briefly reviewed herein, the proposition is clearly deducible (and upon principle the proposition as involving a sound legal rule would appear to be unimpeachable) that, even where there have been no false representations or promises by one of the spouses that the marital obligations have always been and would always be faithfully kept, property which has been given by one to the other will be restored to the donor upon discovery by the latter that the donee has been before or after the gift guilty of maintaining meretricious relations with a third party. In other words, the very act of unfaithfulness to the marriage vows in the particular characterizing this case itself furnishes a sufficient legal ground for vitiating the gift.’ The court cites with approval Thomas v. Thomas, 27 Okl. 784, 109 P. 825, 831, 113 P. 1058, 35 L.R.A.,N.S., 124, 133, Ann.Cas.1912C, 713, where a husband sued to cancel a gift to his wife upon the ground that, after the gift had been made, he discovered that she had committed acts of adultery while pretending that she was faithful to her husband. There the court said, as to the right of the husband to cancel the gift, ‘In the wife's adultery the entire foundation and consideration for the gift is swept away and leaves its support void—indeed in this case the consideration was gone, the right to care, affection, confidence, or even tolerance, every basic consideration, had been destroyed and had no existence when the gift was made. These things failing, the gift failed.’ A number of cases are cited in the opinion to the general effect that where a confidential relation exists, such as that between husband and wife, and one has obtained an unfair advantage over the other by means of the influence and confidence thus acquired and betrayed equity will interpose to relieve the injured party from the other's fraud.

Respondent relies upon Petry v. Petry, 47 Cal.App.2d 594, 118 P.2d 498, and Bullock v. Bullock, 131 Wash. 339, 230 P. 130. In the Petry case the husband attacked a property settlement on the ground that the marriage was void because the wife had not been legally divorced from her former husband. The reviewing court held that this was a collateral attack upon the judgment of divorce because the validity of the marriage was an issue in the divorce action and the finding of ‘marriage’ presupposed a valid marriage. The Washington case stands alone and is out of harmony with the rule of the cases in this state.

In support of the judgment the respondent contends that appellant is estopped from attacking the decree of divorce because of his subsequent remarriage, and that the law does not permit one to attack a portion of a final judgment and permit the remainder to stand. Neither point has any merit. The subsequent marriage of appellant has no possible relation to the question of respondent's fraud in procuring the property settlement agreement. And it should be emphasized here that the rights of the minor children are not involved in this proceeding in any manner, that appellant has not been charged with abandonment or a failure to provide for them at any time, and that their custody and control has been taken from respondent in another court. The old doctrines of status quo and restitution have no place in a proceeding of this kind where the offending party has herself chosen the ‘status' and where there is nothing to restore. Milekovich v. Quinn, 40 Cal.App. 537, 545, 181 P. 256; Title Ins., etc., Co. v. California Dev. Co., 171 Cal. 173, 209, 152 P. 542; Locke Paddon v. Locke Paddon, 194 Cal. 73, 83, 227 P. 715; In re Estate of Barrow, 27 Cal.App.2d 402, 406, 80 P.2d 1006.

That a party may under these circumstances have relief from a property settlement obtained by fraud without attacking the judgment granting a divorce has been heretofore adjudicated in Mason v. Mason, 219 Cal. 111, 25 P.2d 461, and Lorraine v. Lorraine, 8 Cal.App.2d 687, 695, 48 P.2d 48. In Milekovich v. Quinn, supra, this court had on appeal a similar case where a party to a divorce decree attacked in a separate action a property settlement. The plaintiff in the second action had married after the divorce had been granted and we held that notwithstanding this new relation she was entitled to relief from the fraud practiced upon her in relation to the property rights alone. This case has been cited with approval and we have found no authority in this state to the contrary. For these reasons we are satisfied that the proposed answer and cross-complaint plead a triable cause of action for equitable relief from a contract affecting the property rights of the parties alone. There is no sound reason why this issue should not be tried without upsetting the decree of divorce. If the respondent is entitled to some award in the nature of alimony the court, in the exercise of its equity powers, may grant her such protection. But the fact that some support may be proper cannot be used to deny to appellant his day in court upon the other issues raised.

Judgment reversed.

NOURSE, Presiding Justice.

GOODELL, J., and DOOLING, J. pro tem., concur.