The plaintiff and the defendant were married at Moorhead, Minnesota in November 1942. On July 5, 1947 the plaintiff caused a summons and complaint to be personally served on the defendant whereby the plaintiff sought a divorce upon the grounds of extreme cruelty. On July 14, 1947 the parties *Page 560 entered into a written stipulation and agreement which provided that the defendant was to have custody of the minor children of the parties, subject to the right of the plaintiff to visit them at reasonable times and places. It was also agreed that the defendant was to have the house of the parties located in Finley, North Dakota, and the furniture and personal property therein, except the plaintiff's personal effects. The plaintiff agreed to pay off a mortgage on these premises, and to pay the defendant until further order of the court, as alimony and support money, one-third of his monthly earnings not exceeding $100.00 per month. The defendant made no appearance in the action and on August 12, 1947 judgment was entered against the defendant by default. This judgment incorporated the provisions of the stipulation regarding custody of the children, property, and alimony payments. The plaintiff handed to the defendant a copy of this decree about the middle of August.
After the divorce was granted the defendant consulted an attorney and through him arrangements were made whereby the house was deeded over to the defendant in compliance with the stipulation, and decree of the court. The plaintiff paid off the mortgage. The defendant later deeded the house to her mother but has the privilege of living in it. Her explanation is that the conveyance of the house was made in order to get money to pay bills. The defendant states that the plaintiff has paid her only $48.00 up to the time of the application. The plaintiff contends that he paid her much more but names no amount. It is a fair inference that he has not complied with his stipulation and the court's order to pay one third of his earnings not exceeding $100.00 per month.
The plaintiff was remarried on August 21, 1947. About two weeks before Christmas the second wife gave birth to a child that lived but a few hours. At the time the divorce was granted the defendant was also pregnant and gave birth to a child on September 5. This was the fifth child born to the parties. No mention was made of the defendant's condition in connection with the divorce proceedings. The plaintiff claims he did not know of it. The plaintiff named only three children in the complaint. The name of the oldest child was omitted because it had *Page 561 been born two months after the marriage of these parties and they represented to the defendant's relatives that this child was adopted.
On March 29, 1948 the defendant made a motion to have the default divorce decree set aside and that she be relieved of default and be permitted to answer. She alleges mistake and inadvertence on her part which was brought about by the fraud of the plaintiff. She particularizes this alleged fraud by stating in substance these facts. The plaintiff, she says, told her that he was responsible for the pregnancy of a minor and that he would go to jail unless he could divorce the defendant and marry the girl for whose condition he was responsible. He also told her that after the child was born he would divorce his second wife and remarry the defendant. Believing these representations to be true and relying upon his promise to remarry her, the defendant permitted the plaintiff to obtain a default divorce. She also alleges that the plaintiff perpetrated a fraud on the court by failure to name the oldest child in the proceedings, or to inform the court that the defendant was expecting the birth of a fifth child.
The trial court granted the defendant's motion to set aside the default decree and the plaintiff appeals.
The plaintiff categorically denies the alleged statements regarding the minority of his prospective second wife who in fact was not a minor and also denies that he promised to divorce her and remarry the defendant.
Section 28-2901, Rev Code ND 1943 vests discretionary power in the district court to relieve a party from a default judgment upon the grounds that it was taken against him through his mistake, inadvertence, surprise or excusable neglect. Applications under this section are addressed to the sound judicial discretion of the trial court and his disposition thereof will not be disturbed on appeal, unless it plainly appears that the court abused such discretion. Mantel v. Pickle,56 N.D. 568, 218 N.W. 605, and cases cited therein. That discretion must, nevertheless, be exercised in accordance with recognized rules. Such an application is an appeal to the equitable powers of the court and *Page 562 is to be disposed of upon equitable principles. Smith v. Smith,71 N.D. 110, 299 N.W. 693; Guenther v. Funk, 67 N.D. 543, 274 N.W. 839, 112 A.L.R. 428. This rule applies when the vacation of a judgment is sought upon the ground of fraud. Freeman, Judgments 5th ed §§ 233, 234; 31 Am Jur, Judgments §§ 734, 735. Only extrinsic fraud may be urged in support of such an attack upon a judgment. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 2 ALR2d 271.
The burden is on the defendant to sustain her charges of fraud. Reppert v. Reppert, 214 Iowa 17, 241 N.W. 487; 17 Am Jur, Divorce and Separation § 458. The showing of fraud must be clear and convincing. Walters v. Walters, 151 Minn. 300, 186 N.W. 693.
This case is similar in some respects to Henderson v. Henderson, 32 N.D. 520,156 N.W. 245, wherein it is said, "having consented to the decree in order to aid her husband, she cannot question its validity by merely showing that the husband has failed to keep his agreement to remarry her, especially after the husband has married another woman." But in that case the wife who sought to have the divorce decree set aside had instituted the action in accordance with an agreement with her husband that she should obtain the divorce, under the mistaken belief that it was necessary to enable her to testify for her husband in a criminal action in which he was charged with embezzlement. The husband agreed that after his troubles were over he would remarry the plaintiff but instead married another woman. In that case it was said that she had good grounds for a divorce against her husband for adultery and probable desertion. The only fraud practiced on her was the failure of the husband to keep his promise to remarry her. Her testimony showed that she still believed that the defendant was guilty of adultery and in that respect the decree was correct. The Supreme Court reached the conclusion that "the divorce was not obtained by any fraud practiced upon her."
In this case the defendant attacks a judgment which was obtained against her by default. It was rendered on August 12, 1947. These proceedings to have the judgment vacated were instituted March 29, 1948, well within the year in which a party *Page 563 may seek relief from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect under the provisions of § 28-2901, Rev Code ND 1943.
The transcript in the original divorce proceeding is before us. The plaintiff was the chief witness in his own behalf. After testifying to the parties' marriage and their citizenship he further testified as follows:
"Q. And do you have any children?
A. Three.
Q. Will you give their names?
A. Alwood, Malayne, and Vernon.
Q. And their ages are three, two and one?
A. Yes.
Q. Have you and your wife been getting along?
A. Not very well.
Q. Has she called you names?
A. Yes.
Q. What names has she called you?
A. She called me an old bitch and other names.
Q. Has she socially charged you with chasing around with other women?
A. Yes.
Q. And has she refused to cohabit with you and live with you as man and wife?
A. Yes.
Q. And that has been over a period of many months now?
A. Yes.
Q. Has she told you that she doesn't care for you anymore?
A. Yes.
Q. What is her attitude towards keeping up the home? Does she want to do her own part there?
A. Sometimes she does and sometimes she doesn't.
Q. Has she ever left you?
A. Yes, she has left me many times.
Q. And how long would she stay away?
A. For three weeks to a month at a time. *Page 564
Q. And because of this conduct on her part have you worried about it?
A. Yes.
Q. And have you become nervous?
A. Yes.
Q. And have you lost sleep?
A. Yes.
Q. And it has had a bad effect on your health?
A. Yes."
This is all of plaintiff's testimony bearing upon grounds for divorce. The only corroborating testimony produced at this hearing is as follows:
"Q. What is your name?
A. Conrad Smithrud.
Q. Are you acquainted with Mr. and Mrs. Miller?
A. Yes, I am.
Q. You have been in their home?
A. Yes. I roomed there.
Q. Have you had occasion to observe how they get along?
A. Yes. I have.
Q. You have heard them quarreling?
A. Yes.
Q. Have you ever heard her nagging at him?
A. Yes.
Q. Did you ever hear her call him a name?
A. Yes.
Q. Will you name one name you heard her call him?
A. An old bitch."
The plaintiff would make much of the fact that the defendant signed a stipulation for a property settlement which he introduced in evidence as Exhibit A. His testimony at the hearing and her conduct in agreeing to a property settlement and permitting the decree to be entered against her by default must be viewed in the light of this background. He was an admitted adulterer. At the time the divorce was granted the parties had been married four years and nine months. During that period the defendant had borne the plaintiff four children one of whom *Page 565 he omitted to mention in his testimony. In less than a month after the hearing she bore him a fifth child whose approaching birth was also unmentioned. In the face of these facts he charged the defendant with mental cruelty because he said she accused him of chasing around with other women and refused to cohabit with him as man and wife. We point out these facts not to intimate that perjury is a ground for vacating a divorce decree but because they have a bearing on the defendant's credibility in this proceeding. They also show the conditions that confronted the defendant when she was induced to permit the plaintiff to obtain a default divorce decree. They are circumstances to be considered in determining whether her default is excusable. Rehfuss v. Rehfuss, 169 Cal. 86, 145 P. 1020; Carmichael v. Carmichael, 106 Or. 198, 211 P. 916; Petersen v. Petersen, 221 Iowa 897,267 N.W. 719; Cobb v. Cobb, 43 S.D. 388, 179 N.W. 498.
Unfortunately there are parties other than the quarreling litigants who have a vital interest in the matter before the court. They are the two of the five children of the parties, one of them unborn at the time of the decree. Neither was mentioned in the complaint, the stipulation, or in the testimony at the divorce hearing. This record does not yet disclose the name or sex of either the oldest or youngest child. The plaintiff in his affidavit in response to the motion to vacate states:
"That the oldest child of the defendant was born at the Florence Crittenton Home in Fargo, North Dakota about a month after her marriage to the plaintiff; that the defendant has given the public to know that said child is adopted and has some kind of papers purporting to substantiate her claim; that she always insisted that the plaintiff and herself consider this child as adopted, and it was for that reason that it was not mentioned in the divorce papers; that the plaintiff honestly did not know that the defendant was pregnant at the time the divorce was obtained." His statement regarding the oldest child is not challenged by the defendant. His statement regarding the youngest is controverted and is contrary to the normal experience of mankind. His affidavit, in contrast with his lack of frankness at the divorce hearing, also states that his second wife is again pregnant. This statement, if true, further aggravates this unfortunate *Page 566 situation, but his fecundity does not render the court impotent to exercise its equitable powers in behalf of his children by his first marriage who are directly affected. The plaintiff is the prime mover in a fraud upon his wife, his children, and the court.
In Young v. Young, 17 Minn. 181, 17 Gil 153, it is said, "in an action for divorce, any course of action by the plaintiff which is intended to and does prevent the defendant from setting up and establishing a defense to the action is a fraud upon the administration of justice, as well as upon the defendant, for which the judgment thereby procured will be set aside." This passage is quoted in the more recent case of Cahaley v. Cahaley,216 Minn. 175, 12 N.W.2d 182, 157 A.L.R. 1. See also Rehfuss v. Rehfuss, 169 Cal. 86, 145 P. 1020, supra; Graham v. Graham, 54 Wash. 70,102 P. 891, LRA1917B 405, 18 Ann Cas 999; Pringle v. Pringle,55 Wash. 93, 104 P. 135.
The rights and welfare of the children are paramount to those of the litigants. The concealment of their existence was a fraud upon them and upon the court whose duty it was to provide for them regardless of the desires, motives, or mistakes of their parents. The record clearly shows that he was deprived of the opportunity to perform that duty. We cannot say that his action in setting aside the default decree was an abuse of discretion. The order appealed from is affirmed.
NUESSLE, Ch. J., and BRODERICK, District Judge, concur.
BURR, J., did not participate.