Karlslyst v. Frazier

SEAWELL, J.

Appellant, Oscar Karlslyst, brought this action to obtain equitable relief from a provision in an interlocutory decree of divorce entered in an action brought against him by respondent herein, who is now Elsie Frazier, ordering him to contribute $25 a month to the support of Marian Elaine Karlslyst, found by the court to be the child of the parties, until further order of court.

As grounds for relief appellant alleged that said Marian Elaine Karlslyst, born four months after his marriage to respondent, was not his child; that at the time of their separation, which was about a year after marriage, he had agreed to pay respondent $400 in installments in full satisfaction of all claims against him, and in consideration thereof she had agreed to care for and provide for said child, and he had faithfully paid said sum; that when it appeared that respondent prayed for support for said child in her action for divorce, an agreement had been entered into between her attorney and appellant’s attorney, on behalf of their respective clients, that if appellant did not appear and contest said action she would not apply for any relief other than temporary alimony and no other relief would be asked for or taken; and that respondent applied for an interlocutory decree without further notice to appellant or his attorney, and, in violation of said agreement, and without advising the court thereof, applied for and was awarded relief in excess of that provided for in the agreement. Respondent denied the making of said agreements, and also the appellant’s contention that the child was not his, and the court found in her favor on both questions.

The action was brought in 1929, more than five years after the entry of the interlocutory decree, appellant claiming that he had no notice of the provision for support contained therein until 1927. Said provision was not carried into the final decree, but in view of the fact that the final

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decree did not purport to modify the order of support, said order remained effective.

Conceding that extrinsic fraud was practiced upon appellant by respondent concealing from the court her agreement to assume full support of said child and to take no award for its support, which agreement induced appellant to absent himself from the hearing, appellant is not entitled to equitable relief on the facts shown. Before relief may be obtained in equity from a judgment affected with extrinsic fraud, it must appear that said judgment is unjust and that a different judgment would have been entered but for the fraud practiced.