Holt v. Parmer

California Court of Appeal Aug 28, 1951 No. Civ. 4247Published

Before: Barnard

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Holding. The court held that a defendant seeking to invalidate a foreign judgment based on extrinsic fraud presents an equitable issue that is not triable by a jury. Furthermore, the defendant is precluded from attacking the support provisions of a judgment while simultaneously relying on the divorce provisions to validate his own remarriage.

Issues

Whether a defendant is entitled to a jury trial when asserting extrinsic fraud as a defense to an action on a foreign judgment.
Whether a party may collaterally attack a foreign judgment for extrinsic fraud while relying on the same judgment to validate a subsequent marriage.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The right to a jury trial is determined by the character of the issues framed by the pleadings.”

“By interposing this defense the appellant sought an affirmative action of the court by holding that the judgment sued on was void and ineffective because it was procured by fraud.”

“he should not now be permitted to attack part of the judgment, while still relying on the remainder as being in full force.”

BARNARD, P. J.

This is an action to establish a judgment of a sister state granting a divorce and providing for the support of a minor child.

The facts are not disputed. The plaintiff is the former wife of the defendant. In 1937, she obtained a judgment of divorce in the state of Georgia, where the parties resided. The defendant was personally served there and defaulted. The judgment provided for certain “alimony” payments to the plaintiff until she remarried, and further ordered the defendant to pay $50 per month for the support of a minor son until he reaches the age of 21 years. Both parties have since remarried, and there is no controversy with respect to payments for the benefit of the wife. The defendant left Georgia before the judgment was entered and for some years has resided in California. He has never made any of the payments for support of the child called for by that judgment.

The complaint in this action is in the usual form and the prayer is that the Georgia judgment be established as a foreign judgment; that it he enforced in the manner provided by law; that it be adjudged and decreed that a certain amount, with interest, is due; and for such other equitable relief as is proper.

The defendant set up a special defense, challenging the validity of the judgment on the ground that it was procured by extrinsic fraud in that the trial judge and the wife’s attorney, in the Georgia action, did certain things “in the nature of fraud, which dissuaded him from raising a defense on the merits, or contesting the action.” In this regard, he alleged that on June 5, 1937, he was served with “process” requiring him to appear and answer in the divorce action on the third Monday in July, 1937, and was also served with an order to appear on June 11, 1937, to show cause why a petition for temporary alimony should not be allowed; that he appeared before the judge on June 11; that in the presence of the judge and of his wife’s attorney he “related his defense” and told them of several acts of misconduct on the part of his wife; that the judge said he did not blame him, that he would not grant the application for alimony or maintenance, and that he would trust him to do what was right by his son when he was financially able to do so, and further advised him “to put 3000 miles between himself and the

[331]

Holt v. Parmer

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BARNARD, P. J.

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