(dissenting).
I respectfully dissent.
I would reverse the order granting the motion to quash (and the order awarding Alan attorney fees) and would remand for further proceedings. A fraud was allegedly committed upon the court; however, the trial court neglected or failed to consider that issue.
The majority correctly notes that “[i]t appears that the sale price of the stock was not disclosed to the trial judge to keep him from raising questions as to the disparity in the property settlement agreement.” (This sales price was $240,000, not some trivial amount!)
That statement comes from unchallenged allegations in Tina’s affidavits. She stated that if the information was disclosed to the court “the court would not then grant a divorce,” and, further, that it was withheld from the court “in order to protect our financial future and security in the event the sale of his stock in Anderson Scientific would result in litigation.” Alan’s affidavits never disputed these allegations (other than to allege that he never concealed the sales price from Tina and that there was “absolutely no litigation relating to any attempted Anderson Scientific stock sale”). Therefore, Tina’s assertions that they were intentionally concealing significant property values from the court must be presumed as true.
Tina’s motion for order to show cause requested a hearing to “reopen the proceedings to allow the taking of further evidence on the question of a fair and equitable distribution of the marital property.” Attached to the motion was an affidavit asserting, among other things, the foregoing reasons for the failure to disclose the stock values to the trial court at the time of the divorce. Alan brought on a motion to quash the order to show cause, principally asserting lack of jurisdiction because Tina’s motion allegedly was not timely filed under SDCL 15-6-60(b). After receiving further affidavits and briefs, the trial court entered an order granting the motion to quash “because this Court finds that this action is governed by SDCL 15-6-60(b)(3) and this action has not been timely brought by the Defendant.” It made no mention of and apparently gave no consideration to a claimed fraud upon the court.
It must be remembered that at the time of the divorce the court had the “full power to make an equitable division of the property” and “shall have regard for equity and
*223the circumstances of the parties.” SDCL 25-4-44.* If Tina’s allegations are true, the conduct of the parties specifically prevented the trial court from fulfilling its important judicial duties, particularly under SDCL 25-4-44. Arguably, it became “a victim of fraud rather than a dispenser of justice.” See dissent of Justice Henderson in State v. Bucholz, 403 N.W.2d 400, 404 (S.D.1987).
I suggest, and would hold, that the trial court did not fully consider or give proper effect to SDCL 15-6-60(b). Specifically, it did not apply the last sentence of the rule.
It must be noted that under the clear language of SDCL 15-6-60(b), the time limitation stated earlier in that rule “does not limit the power of a court ... to set aside a judgment for fraud upon the court.” This legal principle was previously stated and adopted by us in Gifford v. Bowling, 86 S.D. 615, 200 N.W.2d 379 (1972) (citing Barron and Holtzoff, Federal Practice and Procedure, § 1330). On remand, the trial court must then ascertain whether, in fact, there was a fraud committed upon it which would warrant setting aside the decree of divorce. In its review, it should remember that we heretofore in Gifford, supra, adopted language to the effect that fraud upon the court should:
... [Ejmbrace only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the independent action.’
86 S.D. at 625, 200 N.W.2d at 384 (emphasis in original) (citation omitted). Further, in Gifford, we adopted authority holding that * * it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.” Courts have found fraud upon the court only where there has been the most egregious conduct involving a corruption of the judicial process itself.’ (Citation omitted.)
We also held in Gifford, supra, 200 N.W.2d at 384 (citing Alberts v. Brubaker, 72 S.D. 220, 31 N.W.2d 769 (1948)), 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.’ ” See also Baldwin v. Heinold Commodities Inc., 363 N.W.2d 191 (S.D.1985), and Wooster v. Wooster, 399 N.W.2d 330 (S.D.1987).
In summary, the order granting the motion to quash must be reversed (as should the order granting Alan’s attorney fees) and the trial court must reconsider the merits to determine whether a fraud was perpetrated upon it and whether Tina’s participation therein is such that she is es-topped from benefitting from a further reconsideration.
Lastly, I would award Tina $1,500 to apply to her attorney fees on appeal.
SDCL 25-4-44 was amended subsequent to the divorce decree.