Vanness v. Vanness

Wood, J., (after stating the facts). I. The statute provides that proceedings for divorce shall be in the county where the complainant resides, and that the process may be directed in the first instance to any county in the State where the defendant may reside. Kirby’s Digest, § 2674. It was held in Wood v. Wood, 54 Ark. 172, 174, that this statute contemplates actual, and not constructive, residence. (1-2-3) One of the grounds for which judgments may be set aside is, “Fraud practiced by the successful party in obtaining .the judgment or order.” It was purely a question of fact as to whether the appellant was a bona fide resident of Cleburne County at the time he obtained the decree for divorce against the appellee. The testimony of Judge Ivie to the effect that at the time he dismissed appellant’s suit for divorce pending in Boone County, the appellant was living in Harrison, Arkansas, was not in the nature of a confidential communication. Witness Ivie does not show that he received this information by reason of the relation of attorney and client. In Vittitow v. Burnett, 112 Ark. 277, we held that “the statute rendering an attorney incompetent to testify concerning communications made to him by his client tends to prevent a full disclosure of the truth, and it should be strictly construed and limited to cases falling within the principle upon which it is based. ’ ’ (4) Since information or knowledge of the residence of appellant is not shown to have been communicated to witness Ivie as a confidential communication, we must hold that his testimony concerning this issue was competent. When this testimony is considered, a finding to the effect that appellant was not a resident of Cleburne County at the time he obtained the decree for divorce is not clearly against the preponderance of the evidence. ■ Before he could obtain such a decree it was necessary, under the statute, for him to show to the court that he was a resident of Cleburne County.' Therefore, in so testifying or making such representation to the court when the same was not a fact, he perpetrated a fraud upon the court. Moreover, the clear preponderance of the evidence shows that appellant perpetrated a fraud upon the court in representing that he had obtained service upon the appellee in his suit for divorce in Cleburne County. When appellant filed his complaint, in order to obtain a warning order against the appellee he filed an affidavit setting forth that the appellee was a nonresident of the State, whereas a decided preponderance of the evidence shows that appellee was not a nonresident, and that appellant knew at that time that she resided at Rogers, Arkansas. (5) II. Appellant contends that appellee is barred by laches. “It is generally conceded,” says Cyc., “in all jurisdictions that public policy, good morals and the interests of society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner and for the causes prescribed by law.” 14 Cyc., p. 578. The application of this principle should cause a court of chancery to set aside a decree of divorce that has been obtained through fraud when the party entitled to such relief acts promptly to obtain it. Application of the same principle should likewise cause the court to refuse to annul a decree of divorce¿ even though obtained by fraud, where the injured party, upon discovery of the fraud, fails to act promptly to have the decree of divorce annulled. Mr. Bishop gives an admirable statement of the policy of the law, which is quoted by us in Corney v. Corney, 97 Ark. 117, 122, as follows: “There are excellent reasons why judgments in matrimonal causes, whether of nullity, dissolution or separation, should be more stable, certainly not less, than in others, and so our courts hold. The matrimonal status of the parties draws with and after it so many collateral rights and interests of third persons that uncertainty and fluctuations in it would be greatly detrimental to the public. And particularly to an innocent person who has contracted a marriage on the faith of the decree of the court the calamity of having it reversed and the marriage made void is past estimation.” Bishop on Marriage and Divorce, vol. 2, sec. 1533. The record shows that the decree of divorce was rendered on the 26th day of January, 1915. The appellant married the second Mrs. Yanness on the 3d of'February, 1915. The appellee testified that she did not know that the suit for divorce had been filed against her in Cleburne County until the latter part of the month of April, 1915, and she instituted this suit to annul the decree on the 6th day of May, 1915. True, appellant testified that his marriage was public, so that the people in Rogers and Boone County all knew it; but this testimony does not tend to prove that the appellee knew it, and does not overcome her positive testimony that she did not learn of it until the latter part of April, 1915. After she learned of the decree in Cleburne County only a few days intervened before she instituted this suit to set it aside. She therefore acted promptly, and the court did not err, under the circumstances, in granting her the relief sought. The second Mrs. Vanness was not a party to the fraudulent decree, and the motion filed by the appellant to make her a party does not set forth any facts to show any interest that she has that would make her either a necessary or proper party to the proceeding. All the defenses that could have possibly been set up to the suit for annulling the fraudulent decree were brought into the record by the pleadings and the testimony on the part of the appellant, and the court correctly held that these could not avail against the relief sought by appellee. The decree is therefore affirmed.