Brown v. Brown

CRAHAN, Judge,

dissenting.

I respectfully dissent. Neither Appellant’s motion nor the record before us supports a claim that the dissolution decree was a void judgment. At best, the motion alleges that the dissolution court’s finding that the parties had been validly married was procured by Respondent’s intrinsic fraud. That allegation will not support relief under either Rule 74.05(d) or Rule 74.06(b) because the motion to set aside was filed more than one year after entry of the judgment. Nor can such allegation form the basis for relief under Rule 74.06(d) because an independent action in equity can be used to set aside a decree only for extrinsic fraud. Further, assuming arguendo that intrinsic fraud can form the basis of an independent action in equity, the record before us is sufficient to support a finding of laches.

Respondent filed the underlying dissolution action on March 9, 1990. In her petition, she averred that the parties were married on November 21, 1987 and that the marriage was registered in St. Louis City, Missouri. Respondent further averred that the parties separated on October 24, 1989 and that the marriage was irretrievably broken. She requested custody of the two children, child support, maintenance, and division of the marital property. Appellant was duly served but did not file an answer to the petition.

On May 1,1990, the trial court conducted a hearing attended by Respondent and her attorney. Appellant did not appear. Following the hearing, the court entered a decree finding Appellant to be in default and dissolving the marriage. In its decree the court found the following:

The Court finds that there remains no reasonable likelihood that the marriage can be preserved and that the marriage is, therefore, irretrievably broken; the Court further finds that the parties were married on November 21,1987, and there were two children born of the marriage, namely: Timothy O’Patrick Brown, born April 5, 1988, and Andrew Lowe Brown, bom June 30,1989, and that the Petitioner is not now pregnant.

The court awarded custody of the two children to Respondent and awarded Appellant certain supervised visitation rights. Appellant was ordered to pay $152.00 per child per month for child support and to maintain medical insurance for both children. The decree also divided the marital property and ordered both parties to assume certain specified debts. The court denied maintenance and attorney fees to both parties. Neither party appealed.

On October 6, 1992, more than two years after entry of the decree, Appellant filed a motion to set aside default judgment and a motion to stay an order of the Division of *99Child Support Enforcement withholding his wages. Appellant’s motion to set aside alleged that the parties had never been married and the petition for dissolution was thereby procured by false, fraudulent and misleading statements by Respondent. On November 3,1992, Respondent filed a motion to dismiss Appellant’s motion to set aside the default judgment asserting that it was untimely.

The trial court held a hearing on both motions on December 1, 1992. In an order dated December 15,1992, the court sustained Respondent’s motion to dismiss Appellant’s motion to set aside the default judgment and decree of dissolution of marriage.

The issue before us is not whether the parties were, in fact, validly married. Rather, the issue is whether Appellant may now offer proof that they were not. As indicated above, in the original proceeding, the trial court found as a fact that the parties were married.1 No appeal was taken from that finding. The majority reasons that a trial court can never obtain “subject matter jurisdiction” to dissolve a marriage that never occurred and that an allegation that the parties were never married will therefore support a determination that the judgment dissolving the marriage was “void” within the meaning of Rule 74.06(b)(3). This reasoning fails to distinguish between the concept of subject matter jurisdiction and the quasi-jurisdictional factual findings a court makes in determining that a particular case falls within its subject matter jurisdiction.

Subject matter jurisdiction refers to the general power of the court to adjudicate the class of suits to which a case belongs. Corning Truck & Radiator Serv. v. J.W.M., Inc., 542 S.W.2d 520, 527 (Mo.App.1976); Farrar v. Moore, 416 S.W.2d 711, 713 (Mo.App.1967); Harrison v. Weisbrod, 358 S.W.2d 277, 288 (Mo.App.1962).

Here, there is no contention that the Circuit Court of Ralls County lacked jurisdiction to adjudicate actions to dissolve marriages. Rather, the allegation is that the circuit court lacked jurisdiction to dissolve this particular marriage because, according to Appellant, the marriage never occurred.

The difficulty with this contention is that it is an attempt to collaterally attack a factual determination made in the dissolution case, a determination that is binding on Appellant and is not subject to collateral attack. The dissolution court expressly found that the parties had been validly married. That finding was not appealed and is binding on the parties by res judicata and collateral estop-pel. The judgment is regular on its face and recites facts sufficient to bring the ease within the subject matter jurisdiction of the court. Therefore, it is not “void.” The judgment may be “voidable” if attacked directly in compliance with the provisions of Rules 74.05 and 74.06, but it is not subject to collateral attack. See Wenzel v. Wenzel, 283 S.W.2d 882, 889 (Mo.App.1955) (where jurisdictional facts appear of record and are found by a court to exist, the opposing party is precluded from showing they did not exist as a matter of fact, except upon proceedings by appeal).

In support of its determination that the allegations in the motion are sufficient to support a finding that the judgment was void, the majority relies on K & K Investments, Inc. v. McCoy, 875 S.W.2d 593 (Mo.App.1994), which is clearly distinguishable. In K & K Investments, the record in the underlying suit showed, inter alia, that the parties seeking to set aside the judgment had never been properly served and that no authorization had been obtained to add them as parties to the suit. Thus, the judgment was void because of irregularities that were clearly apparent from the record in the underlying suit. In contrast, the record in this case is completely regular on its face and contains explicit factual findings which support the court’s exercise of jurisdiction.

Where a default judgment is regular on its face and not “void,” the rules provide three potential mechanisms for setting it aside. The first is a motion to set aside the default judgment pursuant to Rule 74.05. That procedure is unavailable here because Appel*100lant’s motion was not filed within one year of the default. Rule 74.05(d).

The second procedure is a motion to set the judgment aside for fraud pursuant to Rule 74.06(b)(2). That is what Appellant sought to do in his motion. Appellant alleged that the judgment was procured by Respondent’s fraudulent pleadings and testimony that the parties had been validly married. This is an allegation of intrinsic fraud. Vinson v. Vinson, 725 S.W.2d 121, 124 (Mo. App.1987). This contention is also barred because it was not filed within one year. Rule 74.06(c).

The third mechanism is an independent action to set aside the judgment for fraud upon the court. That remedy is unavailable in this ease because equity may be used to set aside a divorce decree only for extrinsic fraud. McKamin v. McKamin, 795 S.W.2d 436, 439-40 (MoApp.1990); see also, Pope v. State, 819 S.W.2d 397, 399 (Mo.App.1991). False averments in a divorce petition, false statements in an affidavit, and false testimony do not constitute extrinsic fraud. Vinson, 725 S.W.2d at 124 (Mo.App.1987). The allegations of fraud in Appellant’s motion are intrinsic and are therefore insufficient to authorize a court of equity to set aside the decree.

The distinction between intrinsic and extrinsic fraud in the context of an independent suit in equity is sensible because extrinsic fraud is conduct which deprives a party of the opportunity to litigate the facts determined in the initial suit. See, e.g., McKar-nin, 795 S.W.2d at 439; Lincoln Steel v. Midr-Continent Nat’l Bank, 646 S.W.2d 809, 811 (Mo.App.1982). Where extrinsic fraud can be shown, collateral estoppel does not bar relitigation of the facts determined in the initial suit because one of the requirements for collateral estoppel is that the party to be estopped had a full and fair opportunity to litigate the issue in the prior suit. Oates v. Safeco Ins. Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979); Hudson v. Carr, 668 S.W.2d 68, 70 (Mo. banc 1984).

In contrast, a claim of intrinsic fraud is an attempt to relitigate facts or issues the parties had an opportunity to contest in the prior suit. If parties were free to relitigate facts they had an opportunity to contest in a prior suit, there would be no finality of judgments. Disappointed parties could simply claim that the other party lied and seek a better result in a more favorable venue by filing an independent suit in equity. Fortunately, this is not the law. Parties claiming that a judgment was procured by intrinsic fraud must raise such claims by motion in the court that rendered the judgment and within the time limits specified in Rule 74.06(e). In my view, this rule applies regardless of whether the facts the party is seeking to relitigate are jurisdictional facts or other facts supporting the judgment. Any other approach would undermine the finality of judgments and violate established principles of collateral estoppel.

Appellant’s motion made no claim of extrinsic fraud. Although Appellant testified at the hearing that his conversations with Respondent led him to believe the dissolution was not going to be pursued, the trial court was not required to believe him.2 Appellant admitted that he had been duly served with the petition and that he received notice of the default judgment shortly after it was entered. Appellant admitted that he called the clerk’s office to inform the clerk that a mistake had been made and was told that he would need to consult an attorney to pursue the matter with the court. Appellant did consult with an attorney but did not pursue the matter because the attorney demanded a retainer. Throughout the period, Appellant had another attorney representing him in connection with a criminal matter but did nothing to raise his claims of intrinsic fraud until an order was entered withholding his wages for child support. Such claims of intrinsic fraud are now barred by Rule 74.-06(c) and cannot be addressed in an independent suit in equity.

*101Even assuming claims of intrinsic fraud could be addressed in an independent suit in equity, the record fully supports a determination that the claims are barred by laches. This was one of the alternative grounds raised in Respondent’s motion to dismiss and, absent a statement by the trial court of the reasons for granting the motion, we must consider whether the trial court’s action can be sustained on any of the grounds raised. Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924 (Mo.App.1989).

The majority finds no evidence to support a finding of laches on the ground that Respondent offered no evidence of prejudice. In my view, prejudice is apparent from the terms of the decree, Appellant’s testimony and the relief sought by Appellant in his motion. The decree did not merely dissolve the marriage, it ordered Appellant to pay child support for his two children. Appellant admitted at the hearing on his motion that he was their father. Among the items of relief requested, however, was an order staying the Division of Child Support Enforcement order withholding his wages to collect the child support that had been ordered in the decree.

Had Appellant come forward promptly when he learned of the judgment and successfully moved to have it set aside, paternity and a similar support obligation could have been established at the same time. Instead, Appellant waited over two years, failed to make child support payments, and now seeks to have the withholding order to collect those payments set aside on the ground that the original judgment was procured through Respondent’s fraud. In my view, such unexcused delay is sufficiently prejudicial to the children’s interests to support a finding of laches. Appellant should not be permitted to profit from his inattentiveness to his acknowledged obligations.

I would affirm the judgment of the trial court.

. Indeed, by his default, Appellant admitted the traversable allegations of fact set forth in the petition. See Maynard v. Maynard, 601 S.W.2d 649 (Mo.App.1980).

. There was ample basis for questioning Appellant’s credibility. Appellant conceded that he may have represented to others that the parties had been married but could not remember whether he had so stated under oath at a hearing in connection with a criminal charge against him.