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In this 1953 Florida case, the plaintiff sought to impeach a divorce decree granted to the defendant on grounds of fraud in procurement. The court rejected the plaintiff's claims that her answer was prepared by opposing counsel, filed without her consent, and obtained under duress, finding the evidence insufficient to support these allegations.
The court held that the divorce decree should not be impeached. The preparation of pleadings by opposing counsel alone does not render them void or invalid. The plaintiff's allegations regarding lack of consent and duress were not supported by the evidence.
“The bill in this case not showing any error upon the face of the record is in its essence an original bill to impeach a divorce for fraud in its procurement.”
Establishes the nature of the proceeding as an attempt to impeach a final divorce decree based on alleged fraud.
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Join FLexlaw to unlock all legal intelligenceThe defendant obtained a divorce and custody of children on October 7, 1952. The plaintiff filed this proceeding on November 24, 1952, and an amended …
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This cause comes on for final hearing upon the record, testimony and argument of counsel. The defendant herein in another suit was, on October 7, 1952, granted a divorce and custody of his children. On November 24, 1952 plaintiff herein filed this proceeding, and filed amended complaint January 9, 1953, which was answered and testimony taken. “The bill in this case not showing any error upon the face of the record is in its essence an original bill to impeach a divorce for fraud in its procurement.” Hall v. Hall (Fla.), 112 So. 622.
*86In the bill many strong words are used but factually it alleges— (1) plaintiff’s answer in the original proceeding was prepared by and in the office of counsel for defendant, prior to filing bill, (2) that plaintiff herein, after signing her answer, was debating whether to mail it “when the defendant grabbed the answer out of plaintiff’s hands and had it registered and sent U. S. mail to the clerk,” and (3) that plaintiff herein was under duress and intimidated into doing what she did.
As to the first proposition — “If the appearance and waiver was prepared and signed prior to the filing of the petition, we can see no reason why this would render the appearance and waiver void or invalid. If appellant appeared and filed an appearance and waiver — and the record recites that he did — then it speaks from the time of its filing.” Gardner v. Gilbirds (St. Louis Ct. of App.), 106 S.W. 2d 970. The preparation of the pleadings by opposing counsel is neither fraudulent nor void for that cause alone, see Wright v. Wright (Ala.), 159 So. 220, and Kirk v. Bonner (Ark.), 57 S.W. 2d 802.
As to allegations covered by 2 and 3, it is sufficient to say that the proof fails to support either of these propositions. Similar situations as here presented have been considered by our own Court several times and found untenable. See Masilotti v. Masilotti (Fla.), 29 So. 2d 872, and cases therein cited; also Hall v. Hall, supra.
The court, therefore, finds the equities with the defendant. It is ordered, adjudged and decreed that the relief prayed for is denied and that the amended bill of complaint be, and the same is, dismissed. It is further ordered that the defendant herein pay all costs of this proceeding.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hall v. Hall, 93 Fla. 709 (Fla. 1927)
- Masilotti v. Masilotti, 158 Fla. 663 (Fla. 1947)