Summary
affirming dismissal of petition brought in 1946 to vacate 1927 divorce decree as within trial court's discretion and noting that although trial court unquestionably had the power to vacate the decree, "[a]fter a long lapse of time and change in status of persons upon faith in the validity of the decree, this power will always be exercised with great caution"
Summary of this case from Conant v. O'MearaOpinion
No. 3778.
Decided February 1, 1949.
Whether the fraud practiced upon a libelee in obtaining a divorce decree is considered as extrinsic or intrinsic the granting or denial of relief from such decree is governed by general equitable considerations. A petition to bring forward and vacate a decree of divorce after the death of one of the parties was properly denied where a very substantial period of time had elapsed between the date of the decree and the filing of the petition and where a change of status of innocent third parties had occurred in reliance upon the decree.
PETITION, filed in 1946, to bring forward the above entitled case and vacate a decree of divorce granted the libelant in this state in 1927. The petition as amended (see 94 N.H. 328) discloses property in New York which the libelant owned at his death and is brought by the libelee, hereinafter called plaintiff. The petition alleges, and there is evidence in support thereof, that the affidavit upon which service by publication was based contained false statements as to the residence of the libelee, the next friend of the libelee and the knowledge of the libelant concerning her residence in Massachusetts, where she had been induced to go by the libelant. Plaintiff testified that the petition was brought as soon as she first had knowledge of the divorce proceeding, which was after the libelant's recent death in New York.
Subsequent to the divorce Emery married Cyrilla G. Bussey, hereinafter called defendant, and a daughter, now twenty years of age, was born to them.
Trial by the Court with a decree of "Petition dismissed" and plaintiff's exceptions thereto were transferred by Lampron, J.
George R. Scammon (by brief and orally), for the plaintiff.
Robert J. Doyle (by brief), for the defendant.
The Trial Court was confronted with a situation where either the granting or the dismissal of the petition would be prejudicial to an innocent party. The power of the court to vacate such decrees is not questioned, but generally, and in particular in this state, "there has always been a manifest reluctance to disturb a final judgment of divorce, especially after a second marriage involving the interests of third persons." Adams v. Adams, 51 N.H. 388, 396. After at long lapse of time and change in status of persons upon faith in the validity of the decree, "this power will always be exercised with great caution." Id., 399. In the former transfer of this case the guiding principles were stated in the following language: "It is true that after the libelant has remarried, had one or more children by the later marriage and died, the power to vacate the divorce decree should be exercised only with great caution. . . . Moreover the status of an innocent second wife and of any children of hers should be considered as well as any fraud on the first wife." Bussey v. Bussey, 94 N.H. 328, 330, 331.
Whether the fraud is considered as extrinsic or intrinsic (88 A.L.R. 1201) the granting of relief from a divorce decree is governed by general equitable considerations. Restatement, Judgments, ss. 117, 127. In such cases the question of what justice requires is a question of fact to be determined by the Trial Court in the exercise of a reasonable discretion. Melvin v. Melvin, 73 N.H. 602; Sandberg v. Sandberg, 81 N.H. 317.
This is a case where the petition seeks "in practical effect, to destroy rather than preserve a `personal status' which is `of the highest importance to the parties and to the community:'" Tuttle v. Tuttle, 89 N.H. 219, 221. We cannot say as a matter of law that the Trial Court's decision lacks support in the record in view of the long lapse of time and the change of status of other innocent third parties in reliance on the divorce decree of 1927. Cf. Cote v. Cote, 94 N.H. 372.
Exceptions overruled.
All concurred.