Stark v. Mintz

California Court of Appeal Apr 20, 1948 No. Civ. 16231Published

Before: Bartlett

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Holding. The court held that a divorce decree cannot be vacated for fraud unless the fraud is extrinsic or collateral to the issues determined in the original action. Because the appellant was present at the trial and had the opportunity to present his case, the alleged fraud was intrinsic and insufficient to set aside the judgment.

Issues

Whether a divorce decree may be vacated based on allegations of intrinsic fraud.
Whether the judgment in the prior action was void on its face for lack of jurisdiction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“a decree may be vacated for fraud only when that fraud is extrinsic or collateral to the questions examined and determined in the action.”

“Fraud perpetrated under such circumstances is intrinsic, even though the unsuccessful party does not avail himself of his opportunity to appear before the court.”

“There was nothing on the face of the record in Stark v. Stark indicating any lack of jurisdiction to make the decree rendered.”

BARTLETT, J. pro tern.

The action is one to vacate a portion of a divorce decree rendered 14 years ago, insofar as that decree made disposition of certain real estate. The Third Amended Complaint alleges that in the action of

Stark

Stark,

D-117, 728, the plaintiff in that action (the respondent Rose Mintz, formerly Rose Stark, in this case) alleged that the real property described in the complaint in this action was community property; that this allegation was false; that the property was acquired by appellant and the respondent in September 22, 1923, as joint tenants, “at which time they entered into possession of said premises as their home and homesteaded same and occupied same as such”; that plaintiff never entered into an agreement to change the character of the property but on information and belief, the judge who tried the case was never informed that said property was the separate property of appellant; that the defendant in that action, the appellant here, was present in court at the time of the trial and the court stated that plaintiff Rose Stark should have the right of the use and occupancy of the real estate and that in the event Rose Stark should remarry, the real estate should be his; that recently Rose Stark has remarried and now resides in Palm Springs, California; that “through mistake, inadvertence or otherwise” the decree as drawn, signed by the judge and entered, did not comply with the statement made concerning it orally by the court.

Appellant further alleges that by the decree in

Stark

he was ordered by the court to execute a deed to the property in question but that he refused to do so and that following such refusal the court ordered the then Court Commissioner Kurtz Kauffman to do so in appellant’s behalf, which was done on March 21, 1934, and the deed was recorded on that date. The Third Amended Complaint also alleges that the parties in

Stark

owned other property which was community property, consisting of money and real estate in Brooklyn, N. Y., but that Rose Stark did not disclose this fact to the court. The complaint is silent as to whether any disposition of this property was made in the judgment. At any rate, no complaint is made concerning it.

Stark v. Mintz

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