Summary
In Harchenko v. Harchenko, 77 N.D. 289, 43 N.W.2d 200 (1950), a plaintiff sued her ex-husband for fraud and deceit for misrepresentations made in the parties' stipulated divorce settlement.
Summary of this case from Sullivan v. QuistOpinion
File No. 7150
Opinion filed June 16, 1950
Appeal from the District Court of Ward County, A. J. Gronna, J.
E. J. McIllraith, for appellant.
Collateral attack means every proceeding in which integrity is challenged. Frishee v. Coburn, 101 Mont. 58, 52 P.2d 882.
A collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade its force and effect in some manner not provided by law, that is in some other way than by appeal. Robinson v. Harrison, 179 Okla. 79, 62 P.2d 894; Spencer v. Spencer, 31 Ind. App. 321, 67 N.E. 1018.
When a party has been induced to enter into a contract by false and fraudulent representations, he has several remedies. Rausch v. Goulet, 57 N.D. 674, 223 N.W. 80, 89; 13 CJ 395, Sec 304.
One induced to make a contract, on discovering the fraud has an election either, to affirm the contract and sue for damages, or disaffirm and be reinstated to his former position, but the adoption of one remedy excludes the other. Rausch v. Goulett, 57 N.D. 674, 223 N.W. 808.
An action to recover on a contract and one to recover damages for having been induced to enter into the contract are not inconsistent with each other, both leave the contract undisturbable. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 865.
A preponderance of the evidence after making due allowance for the presumption in favor of honesty and good faith is sufficient to establish a charge of fraud. Rokusek v. Nat. Union Fire Ins. Co. 50 N.D. 123, 195 N.W. 200.
The measure of damages is the difference between the value of the property as in fact it was the value it would have had if as represented. Emmanuel v. Engst, 54 N.D. 141, 208 N.W. 840; Dodd v. Postel's Estate, 14 N.E.2d 539.
McGee McGee and O. B. Herigstad, for respondent.
A defense of res adjudicata may be raised by demurrer, where the fact and the nature of the prior adjudication appear on the fact of the pleading. Beyer v. North American Coal M. Company, 32 N.D. 542, 156 N.W. 204; Leifert v. Wolfer, 74 N.D. 746, 24 N.W.2d 690, State ex rel Hagert v. Templeton, 18 N.D. 525, 123 NW 283, Cizek v. Cizek, 69 Neb. 779, 96 N.W. 657, 99 N.W. 28.
The court in any event has the right to make an equitable distribution of property upon granting of a divorce regardless of which party is at fault. Rindlaub v. Rindlaub, 28 N.D. 168, 147 NW 725; Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 703.
The rule supported by the overwhelming weight of authority is that fraud as a ground for vacating a judgment must be what is known as extrinsic fraud, that is, fraud in the means whereby the judgment was procured, and not fraud in the cause of action or matter put in issue and presented for adjudication. 1 Freeman on Judgments (5th Ed) pp 461-2; 31 Am Jur 231; Jacobson v. Brey, 72 N.D. 269, 6 N.W.2d 269.
A divorce decree is res adjudicata as to every matter that should have been formally put in issue in the divorce suit and litigated as an incident thereto. 17 Am Jur 485; Tuttle v. Tuttle, 48 N.D. 10, 181 N.W. 898; Van Fleet on Collateral Attack, sec 550; Freeman on Judgments (4th Ed) Secs 289, 334, 337; 15 RCL 875-6.
A judgment entered, within the jurisdiction of the court, stands until it is vacated or modified by regular proceedings. Olson v. Ottertail Power Company, 65 N.D. 46, 256 N.W. 246.
A judgment rendered by a court of general jurisdiction, having jurisdiction of the parties and subject matter, imports absolute verity and cannot be attacked collaterally. Olson v. Donnelly, 70 N.D. 370, 294 N.W. 666; Lamb v. King, 70 N.D. 469, 296 NW 185; Kelsch v. Dickson, 71 N.D. 430, 1 N.W.2d 347; Sukut v. Sukut, 73 N.D. 154, 12 N.W.2d 536; Worthington v. Worthington, 218 Ala. 80, 117 So. 645; Anderson v. Schwiter, 236 Iowa 765, 20 N.W.2d 71; Brown v. Tank, 230 Iowa 370, 297 N.W. 801; 34 CJ 520.
Alimony, which signifies literally nourishment or sustenance, is the allowance which a husband may be compelled to pay to his wife for her maintenance when she is living apart from him or has been divorced. 17 Am Jur 405, section 495; Bialy v. Bialy, 167 Mich. 559, 133 N.W. 496; Walton v. Walton, 57 Neb. 123, 77 NW 392; Wiemer v. Wiemer, 21 N.D. 371, 130 N.W. 1015.
In this action, the plaintiff, Anne R. Harchenko, sought to recover from her former husband, William J. Harchenko, damages for fraud and deceit. In her complaint, she alleged that she and the defendant were divorced by a judgment of the District Court of Mountrail County on March 7, 1947; that in said judgment of divorce, the court decreed a property settlement and alimony in accordance with a written agreement and stipulation of the parties; that plaintiff had been induced to enter into such stipulation and agreement by the false and fraudulent representations of the defendant that certain property owned by them, but title to which was in defendant's name, was of the value of $21,000.00 when in truth and fact such property was of the value of $68,000.00; that plaintiff believed and relied upon such false representations and accordingly gave her consent to the stipulation of property settlement to her damage in the sum of $50,000.00
Defendant demurred to plaintiff's complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer. Plaintiff elected to stand upon her complaint and judgment dismissing the action upon its merits was accordingly entered. Plaintiff has appealed from the judgment and from the order sustaining the demurrer.
The gist of defendant's demurrer is that plaintiff's complaint is a collateral attack upon that part of the judgment in the divorce action which decreed a settlement of the property of the parties. Plaintiff states that "far from being a collateral attack, this action is one in aid of the former judgment. It is brought to restore Mrs. Harchenko to the position that she would have had if her husband had not deliberately defrauded her by grossly understating the value of the property."
The judgment in the divorce suit decreed that defendant pay to the plaintiff the sum of $150.00 per month until the youngest of three children should reach the age of 18 years and thereafter $75.00 per month; that plaintiff and the children have free use of the family home until the youngest child should attain the age of 21 years; that defendant pay plaintiff $7,500.00 in cash; that plaintiff retain all U.S. Bonds in her possession and that she have all of the household goods located in the family home except the furniture in one bedroom which was reserved for the defendant. This judgment was entered pursuant to the provisions of Section 14-0524 NDRC 1943 which provides:
"When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. . . ."
The power of the court to decree a property settlement was derived from the foregoing statute and not from the agreement of the parties. Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697. "The stipulation was an agreement which was to be submitted to the court for his advice and guidance in exercising the powers vested in him under the statute. The decree lost none of its effectiveness because the court accepted in toto the provisions of the stipulation instead of modifying them as he unquestionably had a right to do." Karteus v. Karteus, 67 N.D. 297, 301, 272 N.W. 185. It follows that a decree settling the property rights of the parties to a divorce action and granting alimony is an adjudication of what constitutes a just and proper distribution of the property of the parties, whether the decree be made pursuant to a stipulation or upon a consideration of, and findings made, upon other evidence in the case. Fishman v. Alberts, 321 Mass. 280, 72 N.E.2d 513; Harding v. Harding, 198 U.S. 317, 25 S Ct 679; Sponseller v. Sponseller, 110 Ohio St. 395, 144 NE 48; Dean v. Dean, 136 Or. 694, 300 P. 1027; Harris v. Harris's Estate, 82 Vt. 199, 72 A. 912.
Since the trial court had jurisdiction of the parties and of the subject matter of the divorce action, its judgment imports absolute verity and as long as this judgment stands it may not be attacked collaterally by any of the parties thereto, or by those in privity with them. Tuttle v. Tuttle, 48 N.D. 10, 181 NW 898.
Here plaintiff claims damages because of defendant's alleged fraud. Her damages, if any, can be nothing else than the difference between what she received and what would have been a just and proper distribution of the property of the parties. As long as the judgment in the divorce action stands, however, it is an adjudication of what was, and remains, a just and proper distribution. Any attempt on her part to establish that she was entitled to a larger share of the property than was decreed to her by the divorce judgment must of necessity attack that judgment. As was said in Tuttle v. Tuttle (supra at p 17).
"The very essence of plaintiff's action is that the judgment is wrong, — that the facts required the rendition of a judgment different from that which was rendered. The judgment cannot be thus impeached." See also Fishman v. Alberts, 321 Mass. 280, 72 N.E.2d 513; Hall v. Hall, 91 Conn. 514, 100 A. 441; Shultz v. Shultz, 136 Ind. 323, 36 N.E. 126, 43 Am St Rep 320; Stevens v. Rowe, 59 N.H. 578, 47 Am Rep 231; Gerini v. Pacific Employers Ins. Co., 27 Cal.App.2d 52, 80 P.2d 499; Sponseller v. Sponseller, 110 Ohio St. 395, 144 N.E. 48.
In support of her contention that this action does not constitute a collateral attack on the judgment in the divorce action, plaintiff cites and relies upon the case of Dodd v. Postel's Estate, 214 Ind. 39, 14 N.E.2d 539. In that case it was held that an action for damages for the fraudulent concealment of property by one of the parties to an action for divorce was not a collateral attack upon the divorce decree although that decree distributed the property of the parties in accordance with their written agreement. Without giving the decision in that case our unqualified approval, we point out a marked distinction between it and the instant case. There, the court said:
"The only contention made is that certain property was concealed by appellee's decedent, which should have been revealed and divided, and of which under the agreement she was the owner of an undivided one-half. In her present action appellant does not seek to set aside the judgment heretofore entered in the divorce action or in the accounting action. That judgment is binding until set aside by a direct proceeding for that purpose. But that judgment did not operate upon the sequestered and hidden property sought to be reached by this action. It is conceded by appellee that if the allegations of plaintiff's complaint are true, appellant is the owner of and entitled to one-half of the undisclosed property."
Here, the agreement between the parties to the divorce action was not that this plaintiff was entitled to a definite fractional interest in the property of the defendant, but that she should be paid certain sums of money, have the ownership of certain bonds and personal property and the use of the family home. The judgment entered in pursuance of that agreement limits plaintiff's interest in the property of the parties to the specific sums and items therein mentioned. Until set aside it remains the measure of what was a just and proper settlement.
The judgment of the district court is affirmed.
NUESSLE, C. J., MORRIS and CHRISTIANSON, JJ., and PORTER, Dist. J., concur.
GRIMSON, J., did not participate.