This cause is in this court on plaintiff's appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County. The parties will be referred to as plaintiff and defendant as they appeared therein.
The parties hereto were married on September 26, 1942. Three children were born of the marriage prior to the time a default decree of divorce was entered in favor of the plaintiff, and a fourth child was born on May 30, 1948, after entry of the divorce decree.
The defendant, on October 14, 1948, filed his petition in the within action, after term, to vacate the decree of divorce on the ground of fraud practiced by plaintiff *Page 49 in obtaining such decree on the 6th day of March, 1948, during the January term of court.
By journal entry dated April 12, 1949, the trial court vacated the decree of divorce on the ground of fraud, granted the defendant leave to file an answer tendered by him, which on its face stated a valid defense, and then as a part of the decree stayed and suspended the operation thereof pending the determination of proceedings on appeal upon the condition that during the proceedings on appeal the plaintiff should not live with one Jack Helbig with whom she had contracted a ceremonial marriage on October 5, 1948, and should not in the meantime hold herself out to the public as his wife.
We have carefully examined the record to determine whether the evidence was clear and convincing in support of the allegations of the petition to vacate on the ground of fraud, and have concluded that the evidence supports the findings of fact of the trial court by the requisite degree of proof.
On September 6, 1947, plaintiff filed suit for divorce in Cuyahoga county. The sheriff of Cuyahoga county returned the summons endorsed, "the within defendant not found in my county." Thereafter, on October 2, 1947, a praecipe with alias summons was issued to the sheriff of Summit county and on the 4th day of October, personal service was had on defendant in Akron, Summit county, Ohio, as appears by the sheriff's return.
A written agreement had been entered into by the parties on August 2, 1947, and slightly modified on October 6, 1947, wherein it was stated in part that "such differences have arisen between them that first party [plaintiff] is contemplating the bringing of a proceeding for divorce against second party [defendant]." By the terms of the agreement it was provided, among *Page 50 other things, that if a divorce should be granted, the property matters and custody of the children should be governed by the terms of the agreement which should become a part of the decree.
The record shows that on the night of October 18, 1947, plaintiff called her husband at Boston, Massachusetts, from Cleveland, Ohio, and advised him that she was pregnant with her fourth child. By a strange coincidence, the defendant learned on the same night of an occasion in 1946 when his wife, according to her own admissions set forth at length in the record, had been escorted to a train at the downtown Cleveland terminal for the purpose of a trip to Boston; and that she left the train at the East Cleveland station and met two of her husband's friends, Robert Slusser and Jack Helbig, the latter of whom was a close friend of defendant and a member of their wedding party. Helbig then drove Slusser and the plaintiff in his father's car to Boston. On the way the party stopped at a hotel where plaintiff and Helbig occupied the same bed and room while Slusser occupied an adjoining room. Having been informed of these facts, defendant drove by automobile all night from Boston to Cleveland. Upon his arrival he found his wife and Helbig in their apartment, his wife attired only in her night gown and Helbig just getting out of bed and putting on his clothes. No other persons were in the house at the time. Jelm then and there told his wife that under no circumstances would he agree to or permit her to obtain a divorce.
The record is clear that after the events of October 18 and 19, 1947, above related, the parties after some discussions agreed to live together, and thereafter cohabited as husband and wife and moved into a new home on Bryden road, Akron, Ohio, which was purchased by them for that purpose. They continued to *Page 51 cohabit as husband and wife for a period of between five and six months after the wife had secretly obtained an uncontested divorce decree in the Common Pleas Court of Cuyahoga County.
In relation to this entire period of time of cohabitation as husband and wife, the record shows that the wife deceived her husband in respect to the divorce because, as she testified, she "did not want him to know about it." During the entire time from the filing of the petition for divorce in September 1947 to the last of August or first of September 1948, they mingled socially as husband and wife and continued to live in their home in Akron with their children.
The record also is clear that when the plaintiff obtained her uncontested decree of divorce she did not tell the trial judge that the parties had never separated and were still cohabiting as husband and wife, although she presented the separation agreement to the trial judge for approval. When asked about her failure to make this disclosure to the court she replied that it did not occur to her that "it was any of the court's business."
The record shows that the plaintiff wife had, by words and conduct, led the defendant husband to believe that she would not go ahead with the divorce case and that he, relying upon her conduct and representations, was beguiled and prevented from presenting his defense. By her own admission it is clear she knew that living together as husband and wife after the filing of the divorce petition would work an abandonment of the petition for divorce.
Upon the evidence in the record, we conclude that the defendant was induced by the fraudulent course of conduct and misrepresentations of his wife to believe that the proceedings which had been commenced in Cuyahoga county would not be carried on by her, *Page 52 and we conclude also that by the fraudulent course of conduct she concealed the fact that she had obtained the uncontested divorce decree, for a period of at least five months after the decree had been procured. We think it is a fair inference from the evidence shown in the record that the concealment was deliberate and premeditated for the purpose of preventing her husband from learning of the default decree seasonably and in time to present his defense or to take action to vacate the decree. In our opinion the facts show a course of conduct amounting to extrinsic fraud and deceit practiced by the successful party in obtaining a decree of divorce, and that this fraud was not discovered until approximately five months after the entry of the decree.
On this appeal plaintiff assigns thirteen grounds of error. However, in our opinion, the issues here made present for our determination a single question of law which may be stated thus: May a divorce decree be vacated for fraud practiced by the prevailing party in obtaining such decree, by petition after term, under Section 11631 et seq., General Code?
Prior to the constitutional amendment of 1912, reviewing courts of this state were without jurisdiction to review a decree of divorce as distinguished from a judgment relative to alimony and property matters. This doctrine of absolute finality applied to proceedings in error as well as to other modes of review. Thus up to the time of the constitutional amendments of 1912, divorce decrees, because of their sanctity and finality under numerous authoritative decisions, could not be reviewed, modified, or reversed upon appeal or error and could not be vacated by an original bill in equity or by any statutory proceeding after term, no matter how gross the fraud practiced by the prevailing party. *Page 53
The leading case in support of this doctrine is Parish v.Parish (1859), 9 Ohio St. 534, 75 Am. Dec., 482, where the court refused to grant relief upon an original petition or bill in equity after term, although the divorce decree had been obtained by fraud.
The Parish case was followed by other cases. See Solomon v.Solomon (1904), 4 C. C. (N.S.), 321, 16 C. D., 307; Casto v.Casto (1907), 10 C. C. (N.S.), 265, 20 C. D., 93; Mulligan v.Mulligan (1910), 82 Ohio St. 426, 92 N.E. 1120; andEpstein v. Epstein (1909), 17 C. C. (N.S.), 29, 31 C. D., 695.
In Bay v. Bay (decided February 6, 1912), 85 Ohio St. 417,98 N.E. 109, the doctrine of the Parish case was approved in respect to a divorce decree a vinculo, although this question was not directly at issue.
Thereafter, Section 6 of Article IV of the Ohio Constitution, as amended and adopted September 3, 1912, provided:
"The Courts of Appeals shall have * * * appellate jurisdiction * * * to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Courts and other courts of record within the district as may be provided by law * * *."
It is now well established that judgments and decrees rendered by Courts of Common Pleas in divorce cases may be reviewed on appeal on questions of law, including questions involving the weight of the evidence. See 14 Ohio Jurisprudence, 451, Divorce and Separation, Section 62 et seq.; Zonars v.Zonars (1920), 101 Ohio St. 518, 130 N.E. 943; Cox v. Cox (1922), 104 Ohio St. 611, 136 N.E. 823; Weeden v. Weeden (1927), 116 Ohio St. 524, 156 N.E. 908.
Thus, after the year 1912, the doctrine of the absolutefinality of a decree of divorce, which had theretofore been imbedded in the law of Ohio as a matter of public policy, was changed, so that undoubtedly in respect *Page 54 to appeals on questions of law, a decree of divorce was placed upon precisely the same basis as any other judgment.
With this brief summation of the history of the law in respect of the finality of divorce decrees, we come now to the question of whether it is still the law of Ohio that absolute finality attaches to a decree of divorce in all cases except upon review on appeal, as contended by the plaintiff.
Plaintiff relies upon the authority of the Parish case,supra, contending that that case is still the law of Ohio. The syllabus of the Parish case is as follows:
"A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term."
In that case an original bill in equity was filed after term, to which a demurrer was interposed, there being no question raised as to the jurisdiction of the court over the parties. The court sustained the demurrer on the eighth ground set out therein, as follows:
"That the decree of divorce is final and conclusive and cannot be reviewed and set aside."
The opinion concludes with these words:
"We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of cases, forbids us from setting aside a decree of divorce a vinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term.
"Demurrer sustained and bill dismissed."
The court predicated its decision on the ground that the then existing statute, which conferred exclusive jurisdiction in divorce cases on the Courts of Common Pleas, provided that the decree was final and exclusive and prevented an appeal from the decree of divorce. The court stated that this constituted a principle of public policy as a matter of protection for innocent *Page 55 persons who might contract a new marriage without knowledge of the fraud.
The statute (41 Ohio Laws, 94, 2 Curwen, 991), which was in effect when the original proceedings in the Parish case were had, although repealed thereafter, provided that "no appeal shall be obtained from the decree [divorce], but the same shall be final and conclusive."
Peck, J., at page 537 of the opinion in the Parish case, referring to 2 Curwen, 991, stated:
"This statutory provision is nothing more than a legislative recognition of the principle of public policy * * * that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other andinnocent persons, should never be reopened." (Emphasis ours.)
The court then cited the following cases: Bascom v. Bascom, 7 Ohio, pt. 2, 125; Langheny v. Langheny, 15 Ohio, 404; Tappan v.Tappan, 6 Ohio St. 64; Lucas v. Lucas, 69 Mass. (3 Gray), 136;Greene v. Greene, 68 Mass. (2 Gray), 361, 61 Am. Dec., 454.
In the Parish case the court relied upon the authority of and discussed with approval Greene v. Greene, supra, saying that it was "in many respects analogous to the case at bar." At that time, as in Ohio, there was not in Massachusetts any right of appeal or writ of error allowed by law in divorce cases and our Supreme Court quoted with approval the following language from the Greene case:
"`We have seen no reliable authority opposed to the position above taken, that a decree of divorce a vinculo, when no appeal, review, or writ of error is allowed by law, or where the time for bringing such review or writ of error has expired, is final and conclusive upon the parties, and that an original proceeding *Page 56 to set it aside on the ground that it is fraudulently obtained upon false evidence, cannot be maintained.'"
The Ohio court then said, referring to Greene v. Greene:"This case seems to be decisive of the point, and is amplysustained by principle and authority." (Emphasis ours.)
The Supreme Court adhered strictly to the doctrine ofParish v. Parish, in all cases coming before the court for review up to the time of the amendment of Section 6, Article IV of the Constitution, in 1912. Courts of inferior jurisdiction seemed reluctant to follow the principle that even though fraud was committed by the prevailing party no relief could be granted the innocent party, and in some instances sought to distinguish on the facts. However, in Mulligan v. Mulligan (1908), 11 C. C. (N.S.), 585, 21 C. D., 89, an amended petition filed after term to set aside a divorce decree obtained by fraud and perjury was held good on demurrer by the Circuit Court for Mercer county. Here the issue was squarely met. In an opinion containing an elaborate and exhaustive review of authorities, Hurin, J., speaking for the court, said at page 596:
"While the courts of Missouri, in obedience to a mandatory statute, follow the Ohio rule of Parish v. Parish, supra, and the supposed precedent of the Massachusetts cases of Greene v.Greene and Lucas v. Lucas, supra, we have found no case in any other state, where upon facts similar to those in the case at bar relief has not been granted upon proof of due diligence on the part of the party complaining of the fraud."
The Circuit Court then pointed out that "even in Massachusetts the supposed precedents of Greene v. Greene andLucas v. Lucas [69 Mass. 136]," relied upon in Ohio as decisive in Parish v. Parish, had been "completely departed from or explained away," and *Page 57 cited Carley v. Carley, 73 Mass. (7 Gray), 545 (decree vacated for fraud within term), and Edson v. Edson, 108 Mass. 590, 11 Am. Rep., 393, where the Massachusetts court held that the court had jurisdiction to vacate a decree of divorce fraudently obtained at a former term, by petition after term, upon discovery of the fraud.
Whereupon, the Circuit Court declined to follow the Parishcase and earlier Ohio decisions, holding that courts inherently have the right to protect themselves and the public from fraud and perjury.
The Supreme Court in Mulligan v. Mulligan, supra, made short shrift of this decision and without opinion made the following brief entry:
"Judgment reversed and judgment of the Court of Common Pleas affirmed on authority of Parish v. Parish, 9 Ohio St. 534."
In Bay v. Bay, supra, the court held, in substance, that where a husband by false testimony obtained a decree of divorce for the wife's aggression and the decree barred her of alimony, dower, and other interests in the husband's property, the decree dissolving the marriage relation was conclusive but the decree could thereafter be opened up so far as it related to the wife's interests in her husband's property. While this decision was entered in 1912, it was before the effective date of the amendment of Section 6, Article IV of the Constitution.
In the case of Nauman v. Nauman (1897), 4 C. C. (N.S.), 298, 16 C. D., 37, the Circuit Court for this county held, as shown by the second paragraph of the syllabus:
"2. A court is not authorized to reopen a divorce case upon a motion filed two days after the decree was rendered, where it appears that on the day the motion was filed one of the parties without knowledge of the filing remarried." *Page 58
In the case of Sapp v. Sapp (1909), 14 C. C. (N.S.), 269, 24 C. D., 652, the Circuit Court for Knox county held that the rendition of a decree of divorce fixes the status of the partieseo instanti and the marital relation thus severed can be repaired only by the consent of the parties and their remarriage.
Therefore, there can be no doubt that prior to the effective date of the Constitutional amendment of 1912, absolute finality was accorded to decrees of divorce under the rule of theParish case by virtue of the then existing statute and public policy.
What is the state of the law since the amendment of Section 6, Article IV of the Constitution, in 1912? May a decree of divorce be set aside either within term for good cause shown or at a subsequent term of court when the decree was obtained by fraud?
In 157 A. L. R., 44, Section 6, the author asserts that today the Parish case can be considered definitely overruled. At pages 44 and 45 we find the following statement:
"About ten years later [after the Mulligan case (1910),82 Ohio St. 426], and after the Constitution had been amended, the Court of Appeals took the position that the rule of theParish case had been overruled by later decisions of the Supreme Court and declared that divorce decrees stood upon the same basis as any other judgment and were subject to the same modes of relief recognized in other cases. In a later case this rule was especially applied to a petition to vacate a divorce decree rendered by default, so that today the Parish case can be considered as definitely overruled." Citing Zonars v. Zonars,supra; Cox v. Cox, supra; Wells v. Wells (1922), 105 Ohio St. 471,138 N.E. 71; Love v. Love (1922), 17 Ohio App. 228; Beck v. Beck (1933), 48 Ohio App. 105, 192 N.E. 791; Knapman v.Ford (1940), 33 Ohio Law Abs., 477, 19 Ohio Opinions, 552. *Page 59
The first breach in the doctrine of absolute finality of divorce decrees in respect of their vacation within term came in the case of Love v. Love, supra, decided by the Court of Appeals for Darke county, where it was held that "a decree granting a divorce may, in the court's discretion, for good cause, be opened up and vacated during the term wherein the decree was rendered."
At page 229 the court said:
"Under many of the former decisions of the Supreme Court there was a certain finality accorded to a decree for divorce. This finality in the first instance was based upon a statute. Later on the statute was repealed, but the Supreme Court still accorded finality to the decree of divorce upon the grounds of public policy. (Parish v. Parish, 9 Ohio St. 534.) This ruling has been recognized as late as the case of Bay v. Bay, supra.
"The case of Zonars v. Zonars, 101 Ohio St. 518, we thinkconstitutes a new departure. The Zonars case is not reported in full, but the effect of it is necessarily to destroy the finality of the judgment of divorce as established in the case of Parish v. Parish. Since the Zonars case, we think it necessarily follows that a decree for divorce stands upon thesame basis as any other judgment of the Court of Common Pleasand is subject to those modes of relief which have beenrecognized in other cases against judgments entered in thatcourt." (Emphasis supplied.)
The Supreme Court overruled a motion to certify the record in that case on April 17, 1922.
In 1923 the Court of Appeals of the Second Appellate District (Darke county) decided the case of Potts v. Potts, 21 Ohio Law Rep., 326, 1 Ohio Law Abs., 798, wherein the court again held that a trial court had jurisdiction to vacate or modify a divorce decree on *Page 60 motion within term for fraud in the procurement of the decree, and held further that remarriage was not a bar to such action on the part of the court. In the course of an opinion by Allread, J., we find the following statement:
"Counsel for plaintiff in error cite a number of cases which were decided under the statutes existing prior to the constitutional amendments of 1912, and some decisions of the lower courts rendered after the Constitution of 1912 became effective. The Supreme Court, however, in the case of Zonars v.Zonars, 101 Ohio St. 518, 519, held that the Court of Appeals had jurisdiction to review the judgment in divorce cases and to vacate the judgment. The Zonars case was followed by the case ofWells v. Wells, 105 Ohio St. 471.
"The Court of Appeals of this district in the case of DoraLove v. Eli P. Love, an unreported case from Darke county, held that the trial court in a divorce case had jurisdiction upon motion filed during the judgment term to vacate and set aside a decree of divorce in the reasonable exercise of its discretion.
"The Love case was presented to the Supreme Court on motion for writ of certiorari and the writ was refused. This would re-enforce the strength of the authority of the Darke county case."
Later, in 1927, the case of Ready v. Ready, 25 Ohio App. 432,158 N.E. 493, was decided by the Court of Appeals of this district, wherein it was sought to reverse a judgment of the Court of Common Pleas for error in denying a motion of the wife, made during term, to vacate a decree of divorce granted the husband on the ground of fraud and irregularity in the procurement of the decree. The court, through Sullivan, J., asserted at page 434:
"A primary legal question in the case is whether *Page 61 a divorce decree can be set aside for irregularity and fraud by plaintiff, even though subsequent to the divorce a remarriage takes place on the part of the party plaintiff, who was granted the decree. The question involves the contrast in judicial power with respect to cases of this character existing prior to the Constitution of 1912 and those arising subsequent to the adoption of its provisions."
After a discussion of decisions prior and subsequent to the Constitution of 1912, contrasting judicial power, the court reversed the judgment of the trial court and held that where the plaintiff had perpetrated a fraud in the procurement of a divorce and had remarried in the midst of error proceedings, such subsequent remarriage was not a bar to a vacation of a divorce decree. A motion to certify the record in the case was overruled. This series of Court of Appeals decisions interpreting the effect of the constitutional amendments of 1912 and discussing the effect of Supreme Court rulings in respect thereof upheld the jurisdiction of the trial court to vacate decrees of divorce within term. These rulings are in direct contrast with the Circuit Court rulings, rendered prior to 1912, in such cases as Sapp v. Sapp and Nauman v. Nauman, supra.
The litigants in the case of Beck v. Beck, supra, were twice before the court (45 Ohio App. 507, and 48 Ohio App. 105). While there were many complications, the facts germane to the issue here may be summarized briefly:
Velma Beck was plaintiff and commenced her action for divorce and alimony in the Court of Common Pleas of Coshocton County on September 28, 1931. In the January 1932 term, a divorce was granted and alimony allowed. In the April term, 1932, Edgar Beck, defendant, commenced an independent action in *Page 62 Coshocton county to vacate and set aside the judgment for fraud and for want of jurisdiction and prayed for leave to file his answer and make a defense. The Common Pleas Court of Coshocton County dismissed his petition. The Court of Appeals, on May 13, 1933, reversed the judgment of dismissal, vacated the judgment and remanded the cause with instructions to permit defendant to file his answer. (45 Ohio App. 507.) The court found that the affidavit for constructive service having been sworn to before a notary public, who was attorney of record for defendant, was defective and, therefore, the court was without jurisdiction. The court also found that the charge of fraud was not sustained by the evidence.
While the facts of the Beck case are not directly analogous to the facts of the instant case, that case being grounded on want of jurisdiction because of the defectively executed affidavit and this case being grounded on fraud, yet the question of the jurisdiction of the court to vacate a decree of divorce after term was present in that case. Therefore the reasoning contained in the opinion of Sherick, J., with the concurrence of Lemert and Montgomery, JJ., is very cogent. After commenting on the rule of public policy settled in the Parishcase, the court, quoting that part of Section 6, Article IV of the Constitution, as amended in 1912, said:
"The people did not see fit to except from that mandate a judgment of divorce, although they were well acquainted with the theory of public policy and the previous sanctity of divorce decrees. We do not have the temerity necessary to write such an exception into the Constitution.
"In Zonars v. Zonars, 101 Ohio St. 518, 130 N.E. 943, the court considered the finality of a divorce decree in so far as the right to have it reviewed in a proceeding *Page 63 in error was concerned, and it was held that it might be reviewed. A decree of divorce, its finality and sanctity, was placed upon the same basis as any other judgment. In other words the court recognized that the old theory of public policy could not endure as against the people's subsequent constitutional expression. The court, in Wells, Jr., v. Wells, 105 Ohio St. 471,138 N.E. 71, again disregards the finality of a decree of divorce.
"* * *
"Undoubtedly the court in the Zonars case had in mind Section 11634, General Code, which has to do with a motion to vacate a judgment within term. Section 11635, General Code, provides the procedure in other cases, that is by petition to vacate after term within the time limit established by Section 11640, General Code. The petition to vacate in the present instance is grounded upon Section 11635, that is upon fraud, and upon Section 11632, General Code, which deals with the opening of a judgment obtained by service of publication. This court reversed the judgment upon the theory that the Coshocton county court had no jurisdiction of the person of the plaintiff in error. We recognize that authorities are listed under the last named section, which hold that this section does not apply to divorce decrees. The statutes do not so provide. Examination of these cases — all decided before 1912 — discloses that they predicate their holdings on the theory of public policy.
"These statutes are general statutes, none of which provides an exception in the matter of divorce decrees. We are unable to see any distinction in principle between a right of review of a divorce decree in an error proceeding, or a motion to vacate such a judgment within term, and a petition to vacate after term. All were in the past considered not to apply to divorce decrees *Page 64 by virtue of public policy; and not upon statutory inhibition. If the constitutional change supersedes the rule of public policy, as it does, there surely is no sound reason to break from the old rule in two instances and cleave to the rule on a petition to vacate after term." (Emphasis added.)
A motion to certify the record in that case was overruled by the Supreme Court on June 13, 1934.
The Supreme Court has held in many cases that the constitutional amendment, in 1912, of Section 6, Article IV, is not subject to enlargement or limitation by legislative action. See Cincinnati Polyclinic v. Balch, 92 Ohio St. 415,111 N.E. 159; Zonars v. Zonars, supra; Chandler Taylor Co. v.Southern Pacific Co., 104 Ohio St. 188, 135 N.E. 620; Cox v.Cox, supra; and Weeden v. Weeden, supra.
A very important pronouncement bearing upon the jurisdiction of trial courts to vacate or modify a decree of divorce under the statutes at a subsequent term is contained in the case ofWeeden v. Weeden, supra. That was an error proceeding in a divorce case where the court considered the question of whether the Courts of Appeals of this state had jurisdiction to reverse divorce decrees on the weight of the evidence. In that case it was argued that neither the Constitution nor judicial decisions provided procedure for reviewing a divorce case, and that the divorce chapter contained no provision for error proceedings andno provision for filing a motion for new trial. It was further urged that Section 11576, General Code, providing for thegranting of a new trial does not relate to divorce decrees.
The Supreme Court rejected this argument as unsound. Allen, J., speaking for a full bench, after discussing the cases ofCox v. Cox, supra, and Zonars v. Zonars, supra, said: *Page 65
"In the Zonars case this court manifestly held that the constitutional jurisdiction of the Courts of Appeals in divorce cases compelled the application of Section 11576, General Code,to divorce judgments and required the consideration by the Court of Appeals of the question of the weight of the evidence.
"* * *
"In view of the express provision of the Constitution, Article IV, Section 6, which makes no exception in classes ofjudgments, and makes no classification of errors of law forwhich judgments may be reversed, and bearing in mind the decisions cited above, we are constrained to overrule the contention of the plaintiff in error and to affirm the judgment of the Court of Appeals."
At the time of that decision it was provided by Section 11578, General Code, that a motion for new trial was required to be made within three days after the verdict or decision was rendered, unless a party was unavoidably prevented from filing it within such time.
It has been held under these sections that a party who has been unavoidably prevented from filing a motion for new trial may file such motion after three days have elapsed even though the clerk has entered judgment on the verdict. SeeIndependent Coal Co. v. Quirk, 16 C. C. (N.S.), 546, 26 C. D., 471, affirmed without opinion, 80 Ohio St. 746, 89 N.E. 1120.
Section 11580, General Code, then in effect, provided:
"When, with reasonable diligence, the grounds for a new trial could not be discovered before, but are discovered after the term at which the verdict, report, or decision was rendered or made, the application may be by petition, filed not later than the second term after the discovery, nor more than one year after final judgment was rendered, on which a summons must issue, be returnable and served, or publication made, as in other cases." *Page 66
Effective October 11, 1945, these sections of the General Code were amended and provided, among other things, that a motion for a new trial must be made ten days after the judgment or decree has been approved by the court in writing and filed with the clerk, and that if a party was unavoidably prevented from filing a motion within such time the court might, in the interest of justice, extend such time. (Section 11578, General Code.)
New Section 11580, General Code, provides that such application may be made after term under the same conditions set forth in the predecessor statute and that the application may be by petition filed not later than the second term after the discovery of the grounds for new trial, or more than one year after the final judgment or decree was rendered.
It should be noted here that under those sections applicable at the time the instant case was decided, if a judgment is journalized within the last few days or even on the last day of the term, a party under the statute must perforce file his application for new trial after the term at which it was rendered. While under the new amendment (Section 11576-1, General Code), a motion for a new trial is not necessary as a prerequisite to obtain appellate review on the weight of the evidence, such a motion may be filed and many situations arise where a motion for new trial is deemed necessary.
It has been held that a petition to vacate a judgment under Section 11631 et seq., General Code, is not of itself a civil or an independent proceeding in an action to affect a judgment rendered therein at a former term of the same court, but is in the nature of and professedly is an application for a new trial.Taylor, Assignee, v. Fitch, 12 Ohio St. 169; Bever v.Beardmore, 40 Ohio St. 70, 78; Beck v. Beck, supra; Shuck, *Page 67 Exrx., v. McDonald, 58 Ohio App. 394, 16 N.E.2d 619;Terry v. Claypool, 77 Ohio App. 77, 85, 65 N.E.2d 883; andShedenhelm v. Myers, 77 Ohio App. 385, 68 N.E.2d 331.
Thus there is no distinction in principle between a motion for a new trial after term for good cause shown, on applicable statutory grounds, and a proceeding to vacate or modify a judgment or decree after term for good cause shown, on applicable statutory grounds, under Section 11631 et seq., General Code. If then, as decided in Weeden v. Weeden, supra, the constitutional jurisdiction of the Court of Appeals compelled the application of Section 11576 et seq., General Code, to divorce judgments, no sound reason now appears for not applying Section 11631 et seq., General Code, to divorce decrees, especially when it is considered that a petition to vacate a judgment under such sections is a special proceeding in the nature of an application for a new trial. Stated conversely, upon the basis of the cited and quoted authorities, by analogy and reason, it would appear that a divorce decree may be vacated, modified, or reviewed during or after term, upon the same basis as any other judgment. In relation to statutes providing for relief after judgment the arbitrary bar between the last day of the old term and the first day of the new term no longer exists where, within statutory limitations and for good cause, a good case is made for such relief.
That divorce decrees may be set aside upon a motion for a new trial is recognized by Section 12223-7, General Code (amended October 11, 1945), which relates to the time of filing appeals, in the following language:
"After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, * * * *Page 68 the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:
"1. In appeals to * * * Courts of Appeals * * * within twenty (20) days.
"Provided, that, when a motion for a new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial. * * *"
Section 11575, General Code, as amended October 11, 1945, defines a new trial in the following language: "A new trialis a re-examination, in the same court, of the issues, after afinal order, judgment or decree by the court." (Emphasis added.)
As hereinbefore observed, under Section 11576, General Code, a motion for new trial provides a mode of procedure for securing relief after judgment. Section 11631 et seq., General Code, being in the chapter entitled "Other Relief After Judgment," also provide a mode of procedure for relief after judgment, the clear intent and purpose of which is to secure the same result as a motion for new trial if the conditions therein specified exist and the proceedings are instituted within the time limited by Section 11640, General Code. As above noted, divorce decrees and judgments are now subject to vacation, revision, and review upon motions to vacate filed within term, upon motions for new trial under Section 11576, General Code, and upon review by Courts of Appeals.
Consistent with the foregoing the conclusion seems inescapable that Section 11631 et seq. are applicable to decrees of divorce as well as to all other classes of judgments. *Page 69
The principle of public policy that divorce decrees are final and conclusive being no longer the law of Ohio, the basis of the doctrine of the Parish case is completely destroyed. This conclusion is in full harmony with the Supreme Court decisions and Courts of Appeals decisions rendered subsequent to the constitutional amendments of 1912.
In consideration of all the foregoing we conclude that under the present state of the law in Ohio a divorce decree may be vacated for fraud practiced by the prevailing party in obtaining a decree of divorce, by petition after term, under the provisions of Section 11631 et seq., General Code.
The conclusion herein reached is in complete harmony with the great weight of authority in other jurisdictions throughout the United States, particularly where there is an issue of extrinsic or extraneous fraud as distinguished from intrinsic fraud.
A good example may be found in a review of the Massachusetts decisions. We have hereinbefore alluded to the cases ofCarley v. Carley and Edson v. Edson, where the Massachusetts Supreme Court departed from its rule of public policy laid down in Greene v. Greene and Lucas v. Lucas, supra, and which was held to be decisive of the issue in Parish v. Parish, supra. While it is true that in the case of Zeitlin v. Zeitlin,202 Mass. 205, 88 N.E. 762, 23 L.R.A. (N.S.), 569, 132 Am.Rep., 490, it was held that a decree of divorce which had become absolute could not be revoked for perjury found to have been committed at the original trial, on the other hand, in the later case of Sampson v. Sampson (1916), 223 Mass. 451,112 N.E. 84, it was held that a decree absolute of divorce could be revoked for fraud of the husband in leading his wife to believe that he had abandoned the suit and thus to refrain from contesting. This was held to be *Page 70 an extraneous act of fraud as to a subject upon which the courts had not already passed. The facts of that case are closely analogous to the facts in the case at bar. Here we have a case of extraneous fraud practiced by the wife because the record shows fraudulent inducements by a course of conduct and representations as well as concealment of the wrong done, for a period of months after the default decree was fraudulently obtained.
The first paragraph of the syllabus of the Sampson case is as follows:
"A petition to vacate a decree of divorce that was enterednisi and afterwards became absolute, which alleges that the petitioner was induced by the fraudulent conduct and representations of her husband not to contest the libel, to which she had a complete defense, being fraudulently induced by him to believe that the proceedings had been discontinued, and that she did not know of the granting of the decree until after it had been made absolute, states sufficient ground for relief, and an allegation that the petitioner did not receive notice of the libel for divorce, is not necessary."
An examination of the Supreme Court cases of Massachusetts since Sampson v. Sampson, supra, discloses no decisions modifying or overruling the principles of law therein enunciated.
In other jurisdictions throughout the United States the rule is the same. The doctrine applies particularly to default judgments for divorce. See 157 A. L. R., 18, "Divorce," Section 2, where the following statement, supported by numerous citations, is made:
"An application of these general principles to default judgments for divorce leads to the rule, broadly formulated and universally recognized, that such judgments may be set aside or vacated, either upon motion *Page 71 or in an original proceeding, whenever they were rendered under such circumstances as would satisfy the court that they were not intended to be authorized by it. The existence of this power of the court to grant relief in proper cases from a default judgment for divorce as surviving the term at which the judgment was rendered has been recognized, in express language or by implication, in nearly every jurisdiction.
"* * *
"Since in the great majority of cases the court's power to grant relief has been invoked because of fraud perpetrated on the defendant spouse or on the court, the statements of the courts in regard to the existence of the power very frequently refer to their power to set aside a default decree of divorce because of fraud.
"* * * Frequently the courts give expression to their authority to vacate a default judgment for divorce by stating that they have the same power over divorce judgments as they have over other judgments, thus expressly refusing to use any other than the general rule or principles governing judgments or decrees generally."
Another proposition requires some discussion before we conclude this opinion.
Adverting once again to the Parish case, it is clear that one reason influencing the decision on the ground of public policy was the fear therein expressed that once the matrimonial tie had been sundered, the parties would be enabled to contract new matrimonial relations with other and innocent persons. On that ground the court held that a divorce once granted should never be reopened; and that to do so would endanger "the peace and good order of society, and happiness and well-being of those whoinnocently relying upon the stability of a decree of a court of competent jurisdiction, *Page 72 have formed a connection with the person who, wrongfully perhaps, procured its promulgation." The foregoing statement has no application to the facts in the case at bar because Helbig, with whom plaintiff herein contracted a matrimonial alliance secretly in New York state, was obviously not an innocent party but a third party interloper, who, on the record before us, was largely responsible for the present difficulties of the parties. The evidence here tends to show that the very purpose of securing the divorce secretly and fraudulently was to enable the plaintiff to contract the new matrimonial alliance. Certainly on the record there is no advantage taken of another and innocent person.
That the plaintiff was not innocent about contracting the new matrimonial alliance is also indicated in the record. Plaintiff testified that on September 27, 1948, her husband had informed her of his intention to attempt to set aside the divorce decree; that she had communicated this information to her attorney on the last day of September; and that he suggested she come to his office and talk the matter over. As indicating her state of mind and attitude, she testified respecting the conference with her attorney:
"And I said, `there is no sense running around with our tongues hanging out. Nothing has happened yet and I don't think it is worth the time to come down and talk it over until something happens.'"
In view of these facts her secret marriage to her paramour in New York state five days later on October 5, 1948, is not a bar to vacation of the divorce decree obtained by fraud.
"The power of the court to set aside a judgment of divorce has been held, by the overwhelming majority of authority, not to be ended by the fact that the party who obtained the judgment has remarried." 157 A. *Page 73 L. R., 46 et seq., citing many cases from many jurisdictions, including Potts v. Potts, supra. See, also, 14 Ohio Jurisprudence, 448, Divorce and Separation, Section 59;Ready v. Ready, supra; 17 American Jurisprudence, 377, Section 461; Croyle v. Croyle (1944), 184 Md. 126, 40 A.2d 374.
While in the Ready case hereinabove cited and quoted the marriage occurred while the appeal was pending, in the instant case it occurred when it was obvious that an effort would be made to invalidate the decree. In either case the principle is the same. Neither party was innocent, nor was there an innocent third party involved.
Another contention argued by plaintiff is that whatever fraud may have been committed was intrinsic rather than extrinsic fraud. With this contention we do not agree. We think the record shows clear and convincing evidence of extrinsic fraud, and we think it is unnecessary to enter into any extended discussion of this subject.
The words of Chief Justice Taft in Toledo Scale Co. v.Computing Scale Co., 261 U.S. 399, 67 L. Ed., 719,43 S. Ct., 458, have direct application to this situation, where he said:
"We do not find ourselves obliged to enter upon a consideration of the sometimes nice distinctions made between intrinsic and extrinsic frauds in the application of the rule, because in any case to justify setting aside a decree for fraud, whether extrinsic or intrinsic, it must appear that the fraud charged really prevented the party complaining from making a full and fair defense."
Touching the question of public policy in relation to divorce we should recognize the fact that conditions have changed materially since 1858 when the Parish case was decided, almost a hundred years ago. *Page 74
Marshall and May in their volume entitled "The Divorce Court," published in 1933, state in substance that commencing some time before 1930 there has been annually an army of over half a million men and women marching through the divorce courts of America. In Cuyahoga county alone there was an increase in filings for divorce from 4045 cases in 1933 to an all time high of 9107 in 1946, all of which is a matter of public record. There is nothing that the courts can do to stem the tide of this rapid increase in the divorce rate. That is a social problem. But certainly the courts can and should be alert to detect and prevent fraud in the securing of divorce decrees wherever possible. Where clear and convincing evidence is adduced, showing that a decree of divorce has been obtained by the practice of fraud on the part of the prevailing party, such a decree should not acquire greater sanctity than a decree in any other case, simply because the parties have been successful in concealing the fraud until after the end of the term. To approve such a principle is to place the stamp of approval on fraud successfully practiced in a divorce case, while no other type of fraudulently obtained decree attains such sanctity. The fact that the prevailing party was successful in concealing the fact of the uncontested decree until after the close of the court term should not make the question of relief from such fraud impossible of attainment in a proper proceeding.
In view of the present state of the law of Ohio, which recognizes that the state is in effect a third party to every marriage and wherein is recognized the proposition that the family is a primary unit of the state, divorce cases should stand on a parity with all other cases.
It is our conclusion that the Common Pleas Court had jurisdiction to entertain this petition to vacate *Page 75 the decree which the trial court found under the evidence had been fraudulently obtained, and in view of the applicable law we do not find error prejudicial to the rights of the plaintiff, who will only be required to submit her case for adjudication on the issues made by the pleadings.
The judgment of the Common Pleas Court should be, and is, affirmed.
Judgment affirmed.
McNAMEE, J., concurs.