Fair v. Fair

J. Seaborn Holt, Associate Justice. This is an action in which appellee, Nancy Fair, seeks to set aside a divorce decree on the ground of fraud in the procurement of said divorce. The record reflects that Mark L. Fair (deceased) and Nancy Fair (appellee) were married in 1938 and separated in March 1944. The last time that Mr. and Mrs. Fair communicated directly with each other was sometime around Easter 1946. During August, 1950, Mr. Fair filed suit in Crittenden County, Arkansas, for divorce alleging that he and his wife had lived apart three years without cohabitation and prayed that he be granted a divorce. On October 16,1950 he was granted a decree of divorce from Mrs. Nancy Fair. On June 19, 1958 Mr. Fair died and Mrs. Fair, appellee, was notified of his death on June 21, 1958. Shortly thereafter, while checking on a burial policy of Mr. Fair’s and in talking to the manager of the Thompson Brothers Funeral Home, it appears that Mrs. Fair was first apprised of the fact that her husband had procured a divorce. This was confirmed on August 8,1958 when a certified copy of the divorce decree was procured from the court records of Crittenden County, Arkansas. Mrs. Fair filed the present suit to set aside the above decree of divorce primarily on the ground that fraud was used in the procurement of it and that she was never notified of the filing or pending of said divorce suit. On a trial the lower court, after hearing all the testimony, set aside the divorce decree and the administrator of Mr. Fair’s estate, Norman Brooks Fair, has appealed relying on the following points for reversal: (1) Fraud was not proved, (2) Mrs. Fair is guilty of laches, and (3) the trial court was without jurisdiction to hear the case. We have reached the conclusion that the decree should be affirmed on the ground that appellee’s proof shows that the decree of divorce in favor of Mr. Fair was fraudulently procured during Ms lifetime. I The appellee, in charging Fair with fraud in the procurement of the divorce, asserts that he supplied his attorney and the attorney ad litem with an improper address as the place of Mrs. Fair’s residence, with the result that she.received no notice whatever of the pendency of the divorce proceeding. This charge, if supported by the weight of the evidence, constitutes such a fraud as to justify the court in setting aside the decree. Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416; Lewis v. Lewis, 214 Ark. 454, 217 S. W. 2d 346. In the Murphy case, upon essentially similar facts, we said: “Another fraud more subtle and, therefore, more egregious was his action in giving an improper address as the place of his wife’s residence. This prevented her from knowing that she had been sued until after she had been divorced. Such frauds will not be tolerated. ’ ’ Fair, in filing suit for divorce in Crittenden County, gave two possible addresses for his wife, both of wMch were insufficient and resulted in the letters of the attorney ad litem being returned to him by the postal authorities. The first address given was 171 Merton Street, 'Memphis, Tennessee. The proof shows that Mrs. Fair had never lived at this address. Mr. Fair, however, was familiar with the property, as he had formerly owned it. At the time of the divorce case a Mr. and Mrs. Richter were living at 171 Merton Street. Mrs. Richter was a sister of Fair’s daughter-in-law, and Mr. Richter was one of the two corroborating witnesses who testified for Fair in the divorce ease. In the present proceeding Richter testified that in 1950 he knew that Fair was getting a divorce and that when the letter for Mrs. Fair arrived he turned it back and “just put on there she didn’t live there.” Thus there are strong reasons for concluding that Fair well knew that a letter sent to 171 Merton Street would never reach his wife. The second address given was General Delivery, Vicksburg, Mississippi. Mrs. Fair had lived in Vicksburg as a girl and in 1950 still had a post-office box there, in her maiden name, which was used by her mother and other members of her family. Fair had often visited in the family home and undoubtedly knew the address of his mother-in-law there. That the address given was insufficient is of course established by the fact that the letter was returned. Just as in the Lewis case, supra, the fact that Fair made no effort to reach his wife through her mother strongly indicates a lack of good faith on his part. There is also the additional fact that Mrs. Fair was working in a bowling alley in Memphis, just across the river from Crittenden County, that Fair had visited her at the bowling alley on two or more occasions, and that he could easily have used that address to notify her of the divorce case. Hence the weight of the evidence shows clearly, indeed almost conclusively, that Fair practiced a fraud in obtaining the divorce decree. II We cannot agree with the contention that the appellee was guilty of laches in not filing the present complaint until April, 1959. Fair’s fraudulent conduct prevented her from knowing about the divorce case when she was sued, and she did not learn of the decree until after Fair’s death in June, 1958. There was no lack of diligence on her part, nor was the appellant adversely affected by the delay of a few months between the appellee’s discovery of the divorce decree and the institution of this proceeding to set it aside. The appellant also argues that the complaint to set aside the decree is defective in failing to allege a meritorious defense to the original action. Ark. Stats., Anno. (1947) § 29-508; Wims v. Wims, 214 Ark. 811, 218 S. W. 2d 85. This contention we hold to be without merit. Fair obtained the divorce on the ground of three years separation, and it was impossible for the appellee to assert a meritorious defense to the cause of action for divorce, as she admits the fact of three years separation. Hence, under the statute, Fair had a right to a divorce. Ark. Stats., Anno. (1947) § 34-1202. But the statute says that the question of who is the injured party shall be considered in the settlement of property rights and alimony. Upon that point the appellee’s complaint does assert a meritorious defense, by alleging that the parties lived together until December 6, 1945, “when the said Mark Lee Fair deserted her (the appellee).” The complaint therefore asserts the only defense that could be asserted — that the appellee was the injured party. Ill The appellant’s third contention, that the court was without jurisdiction, is based upon the argument that nothing would be accomplished by setting aside the divorce decree now that Fair is dead, since his death freed the appellee from the bonds of marriage. But, as stated in the headnote to Jackson v. Bowman, 226 Ark. 753, 294 S. W. 2d 344: “Chancery courts have the power to set aside a default decree of divorce, even after the death of one of the parties, if property interests of the survivor are affected.” In this case it appears that Fair left a substantial estate, situated in Florida, and the vacation of the Arkansas divorce decree is evidently a necessary step to enable the appellee to assert her rights as Fair’s widow. Finding no error, the decree is affirmed. McFaddin, Ward, and Johnson, JJ., dissent.