KEY SCALES, APPELLANT,
v.
DONNA G. SCALES, APPELLEE

Fla. 3d DCA | 1970-06-23
No. 70-371
Before CHARLES CARROLL, HEN-DRY and SWANN, JJ.
237 So. 2d 50 Florida District Court of Appeal, Third District (1970) Caution
Cited by 4 cases

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Synopsis

In this interlocutory appeal from a divorce judgment, the appellee sought to modify child support and later amended her complaint to challenge the property settlement agreement based on alleged fraudulent concealment of assets. The court held that such claims constitute collateral attacks that must be brought in the original court, not as a modification action in a different county.


Holding

The court held that the fraud allegations constitute an impermissible collateral attack on the divorce decree and cannot be pursued as a modification action in Dade County. However, the appellant is not forever precluded from attacking the divorce decree under Rule 1.540(b), FRCP; instead, she must bring her direct attack in the Circuit Court in Pinellas County where the decree was originally entered.


Headnotes

[1] A collateral attack on a final judgment of divorce is impermissible when the issues raised could have been litigated in the original proceedings.

[2] Allegations of fraud regarding a party's net worth at the time of a property settlement agreement, if discoverable at the time of the original divorce proceedings, do not…

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Key Quotes

“The rule is and has been that those issues that could or have been litigated in the proceedings themselves were not sufficient grounds to collaterally attack a decree which otherwise appears to be valid on its face.”

Establishes the fundamental principle that collateral attacks on decrees are limited to issues that could not have been litigated in the original proceedings.

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Facts & Procedural History

A final divorce judgment was entered in Pinellas County on February 17, 1969, incorporating a property settlement agreement dated January 24, 1969. Th…

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

This is an interlocutory appeal growing out of a final judgment of divorce which was entered in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County on February 17, 1969. Therein, the divorce was granted in favor of appel-lee-wife, and an agreement dated January 24, 1969, which established the settlement of property rights, alimony child support and custody, was incorporated in the judgment.

The appellee moved to Dade County with her two children and thereafter, on August 5, 1969, filed the complaint in this cause. She alleged that the appellant had not made full payment to her under his obligation for support and maintenance of the minor children; that he was constantly in arrears as to his payments; that the expenses for support and maintenance had greatly increased; and that in view of the above stated circumstances, she was requesting a modification of the judgment pursuant to § 61.17, Fla.Stat.F.S.A.(1969).

On March 4, 1970, the appellee filed her motion to amend the complaint, which motion was granted by the court. The amendment included paragraph 6 of the complaint, and charged that at the time of the entry of the final judgment of divorce in Pinellas County, the appellee was com*51pletely unaware of the capital assets of the appellant because the appellant had secreted his assets and made false representations as to his net worth at the time that the property settlement agreement was executed. Paragraph 6 alleged that the appellant achieved the false representation as to his net worth by use of a corporate alter ego.

The appellant contends that paragraph 6, supra, represents a collateral attack on the final judgment, and as such, this cause of action should have been brought before the original court which granted the relief requested. We are compelled to agree with the appellant’s position. As was stated in the case of Macfadden v. Muckerman, Fla.App. 1959, 116 So.2d 448, 449:

"The rule is and has been that those issues that could or have been litigated in the proceedings themselves were not sufficient grounds to collaterally attack a decree which otherwise appears to be valid on its face. [Citations omitted] As opposed to intrinsic fraud, the bill of complaint does not, in our opinion, allege facts which would constitute extrinsic fraud such as the deceased husband’s fraudulently keeping the appellant from defending the action, keeping her in ignorance of the proceedings, or other misconduct that would deprive the wife of an opportunity to have defended the action. See 19 Fla.Jur., Judgments and Decrees, § 431.”

In our opinion, the fraud alleged herein will not support this action in the Circuit Court of Dade County. However, the appellant also contends that the appellee is forever precluded from attacking the divorce decree because of Rule 1.540(b), FRCP, 31 F.S.A. which sets a one year limitation period as to certain attacks on allegedly fraudulently obtained decrees. We cannot agree with that contention. Therefore, the order appealed is reversed without prejudice to make a direct attack on the decree in the Circuit Court in and for Pinellas County, Florida.

Reversed.


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Citator

Cited By

  • Brown v. Brown, 432 So. 2d 704 (Fla. 3d DCA 1983)
    …v. Dinkines, 278 So. 2d 663 (Fla. 3d DCA 1973) (recognizing that independent action to set aside judgment available notwithstanding that motion under Rule 1.540(b) precluded because not brought within a year of entry of judgment); Scales v. Scales, 237 So. 2d 50 (Fla. 3d DCA 1970) (same); In re Casco Chemical Co., 335 F. 2d 645 (5th Cir.1964). We agree with these arguments. However, the appellee contends that the dismissal of the counterclaim can be affirmed for the alternative reason that the court’s powe…
  • August v. August, 350 So. 2d 794 (Fla. 3d DCA 1977)
    …he instant petition was brought approximately eighteen months after the entry of the divorce judgment, the petition was untimely and the trial court properly dismissed it. See Wilder v. Wilder, 251 So. 2d 311 (Fla. 4th DCA 1971). Scales v. Scales, 237 So. 2d 50 (Fla. 3d DCA 1970), does not compel a contrary result. In that case, this court held that the proper venue for an action to modify a divorce judgment was in the court which originally entered the judgment. In obiter dicta, the court quite properly r…

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