Bowman v. Bowman

This is the second appeal in this action of Frances C. Bowman to annul the marriage of Horace D. Bowman and Bryan Houston Bowman. In the first trial judgment was entered for Frances C. Bowman, Bryan Houston Bowman appealed and the judgment was reversed. (Bowman v. Bowman, 97 Cal. App. 613 [ 275 Pac. 1023 ; 1024].) Frances C. Bowman asked for a rehearing, which was denied and hearing in the Supreme Court was also denied. Then Frances C. Bowman moved for a new trial in the court below on the ground of the insufficiency of the evidence to -sustain the findings. This motion was granted and the case was tried again. Judgment was again entered in favor of Frances C. Bowman and Bryan Houston Bowman again appeals.

From a study of the record before us we find the facts to be as follows: Frances C. Bowman and Horace D. Bowman intermarried October 16, 1915; on September 28, 1923, Frances C. Bowman filed suit for divorce against Horace D. Bowman; Bryan Houston, a girlhood friend of twenty years who had often visited in the home of the Bowmans,

About July 27, 1924, Horace and Prances became reconciled, effected a condonation and resumed marital relations. On October 22, 1924, they moved to Pasadena and after a day or two Horace moved some of his belongings to a Los Angeles hotel for the purpose of taking medical treatment and to be away from the noise of the children. While at the hotel, and after receiving a letter from Bryan Houston, he decided to “walk out on” Prances. On October 28th he called on his attorney, David P. Hatch, and arranged that he should call P. F. Grant at San Diego, attorney for Prances, and request him to have the final decree of divorce entered. Bowman did not inform his attorney that there had been a reconciliation and condonation, and Grant, without knowledge of the reconciliation and condonation and without communicating with Prances, had the final decree entered October 28, 1924. Three days later Horace left on a trip east, called on Bryan Houston in New York and they became engaged. November 20, 1924, Horace met Prances 'by prearrangement at Salt Lake City and they celebrated the birthday of their older son, stopping at the same hotel but occupying separate rooms. Horace returned to Los Angeles November 21, 1924, and on December 22, met Prances and his children at the train upon their return from Salt Lake City and assisted them in moving to a house in Pasadena. He, however, continued to live at a Los Angeles hotel. Early in January, 1925, Horace assisted Prances and his children to move to Santa Monica, and on January 15, 1925, he told her of the entry of the final decree. This was her first information concerning it. About a week later Prances wrote to Bryan Houston, then in New York, that the reconciliation had failed, that the final decree had been granted and of Horace’s deception in getting it, and that they were telling people about it and that it was a good end to a bad mess.

On April 21, 1925, Horace D. Bowman and Bryan Houston were married, and a week later Prances learned of

Horace and Bryan separated on October 25, 1925. The final decree of divorce of Horace D. Bowman and Frances C. Bowman was set aside November 2, 1925, and two days later Frances brought this action to annul the marriage of Horace D. Bowman and Bryan Houston Bowman. On December 1, 1925, Frances and Horace became completely reconciled, a third child has been born to them and they still continue to live together.

In this action to annul the marriage of Horace D. Bowman and Bryan Houston Bowman, defendant Horace D. Bowman answered, admitting the allegations of the complaint. Defendant Bryan Houston Bowman answered, denying the allegations of the complaint, plead certain affirmative defenses and filed a cross-complaint naming Frances G. Bowman and Horace D. Bowman as cross-defendants and praying that the order vacating their final decree of divorce be set aside and annulled, to which each filed an answer. In the first trial judgment was entered denying the prayer of the cross-complaint, and vacating, annulling and setting aside the marriage of Horace D. Bowman and Bryan Houston Bowman. Defendant and cross-complainant Bryan Houston Bowman appealed on the judgment-roll. (Bowman v. Bowman, supra.) The District Court of Appeal reversed the judgment, with directions to the trial court to enter judgment against Frances C. Bowman denying her prayer

At the second trial of this action evidence was introduced which changed the picture as to Bryan being an innocent third party. The cross-complaint filed by Bryan alleged that after being told by Horace of the entry of the final decree of divorce, and later having received a letter from Prances conveying the same information, she relied upon this knowledge and married Horace. She further alleged that Horace and Prances entered into a conspiracy and secret agreement to set aside the final decree and annul her marriage with Horace, thereby defeating and defrauding her of her marital rights. She further alleged that Prances allowed one year to pass before acting to set aside the final decree.

To the introduction of evidence concerning alleged relations between the husband and Bryan Houston prior to the entry of the interlocutory decree of divorce and prior to the reconciliation of Horace and Prances, counsel for Bryan objected on the ground that these matters were incompetent, irrelevant and immaterial and wholly collateral to any issue in the case. If the hands of Bryan Houston Bowman were tainted with fraud concerning the case at bar the trial court was entitled to this information and the objection was properly overruled. In the ease of Man

We must now consider the law of the case as established in Bowman v. Bowman, supra. First, it should be noted that the appeal was taken on the judgment-roll only and the District Court of Appeal determined as follows: “The appeal presents the question as to whether or not the conclusions of law were supported by the findings, and whether or not, in view of the findings of fact, the cross-complainant should have been granted the relief prayed for in her cross-complaint.” Second, the judgment of the trial court was reversed on two points: (1) “We determine that, irrespective of whether appellant was a necessary or proper party to the proceeding to vacate the final decree, she was entitled to notice of the application, as one whose rights as a wife have been injuriously affected by the order vacating the final decree of divorce, and that she is entitled to complain of the fraud practiced upon the court and upon herself, and, by her cross-complaint in equity, have the said order set aside and annulled. ... (2) The second reason we find which would indicate that the judgment in this case should be reversed is that, in our view, the order made in the proceedings in the divorce suit after the entry of the final decree was void, as being in excess of the jurisdiction of the court, because: (a) Frances C. Bowman was guilty of laches, as affirmatively appears in findings YII and IX, in delaying her application for suit herein from the early part of January, 1925, when it is found she first knew of the entry of said final decree, until November 2, 1925, a delay of approximately ten months; (b) She was estopped from the right to make application for an annulment of the final decree, as it affirmatively appears from said finding that when she first learned of the final decree in the early part of January, about three months after her own counsel had applied for and ob-

On the first appeal the appellate court did not determine that Bryan Houston Bowman was a necessary or proper party to the proceedings to vacate the final decree of divorce. However, upon the findings of the trial court it was held that she was entitled to notice of the application as one whose rights as a wife were involved and entitled to complain of the fraud practiced upon the court and herself. In numerous decisions the Supreme Court of this state has laid down the rule that the law of a case only applies so long as the evidence develops the same state of facts. If the facts produced at the second trial are essentially different the rule ceases to be of binding force. In Klauber v. San Diego Street Car Co., 98 Cal. 105 , 107 [ 32 Pac. 806 ], the court held: “It is only when the same matters that were determined on the first appeal are brought before it on a Second appeal that the rule can be invoked; and, being a rule which tends to prevent a judicial consideration of the ease, it is not to be extended beyond the exigencies which demand its application,' and it is therefore held that whenever upon the second hearing the record presents a different state of facts, the former determination ceases to be an estoppel.” (Mitchell v. Davis, 23 Cal. 381 ; Bennett v. Wilson, 133 Cal. 379 [ 85 Am. St. Rep. 207 , 65 Pac. 880 ]; Otten v. Spreckels, 183 Cal. 252 , 254 [ 191 Pac. 11 ] ; Estate of Baird, 193 Cal. 225 , 233 [ 223 Pac. 974 ]; 2 Cal. Jur. 950.)

In the first trial of the case and on the appeal, Bryan Houston Bowman appeared an innocent third party, a second wife about to be defrauded of her rights by a conspiracy and agreement between the husband and the first wife. On the present appeal, from the evidence and the findings, she now appears as the third person in the original divorce action. With her knowledge of the facts surrounding the securing of the interlocutory decree, the condonation and reconciliation, and the manner by which the final decree was obtained, it should be said, as in Medina v. Medina, 22 Colo. 146 [ 43 Pac. 1001 ], that a person acting under such a decree is not entitled to the protection of the court as she acquired no rights in good faith upon which she could rely under a decree of court.

The evidence shows that in July, 1925, Horace and Bryan discussed a separation and a possible annulment of their marriage. Bryan knew that Horace had written to a Kansas City attorney regarding it and at approximately the same time she consulted legal counsel in Los Angeles. It appears that Horace desired a separation and that Bryan was opposed to it. Prior to the motion to set aside the final decree (during September and October, 1925) Horace told Bryan several times that Frances was starting a lawsuit in the old divorce matter to open up the matter of the divorce and property and everything concerning her situation. After the papers were served on him he told Bryan that Frances had started the suit. Bryan knew in what court the divorce action had been tried, she had appeared as a witness for Frances, and she knew how the final decree had been secured. She had ample information to put her on inquiry immediately. “In the absence of positive law or order of court requiring notice, it may be stated as a general rule that, where a fact as to which notice might otherwise be required, is one which the party has means of ascertaining from a definite known source, or which is equally known to both parties,- no notice thereof need be given.” (46 Cor. Jur. 552; Tynan v. Kerns, 119

The first trial court by its findings held that Frances learned of the granting of the final decree in January, 1925, and made no effort to set it aside; on the contrary, she acquiesced therein, expressed satisfaction that it had been granted and her willingness that it should stand as valid and binding, and that she had accepted benefits under said decree after the marriage of Horace and Bryan. Presented with this finding, the District Court of Appeal, with no evidence or knowledge of the fraud of Bryan Houston, naturally concluded that Frances was guilty of laches, having, according to their conclusion, waited ten months before moving to set it aside. The only party injured by the delay was Bryan and in the eyes of the appellate court she appeared the innocent second wife.

With both the evidence and the findings at our command we are able to get the entire picture of the situation. According to the record before us there had been a complete reconciliation and condonation between Frances and Horace. In January, 1925, he told her that he had secured a final decree in October and, stunned by his deception, she endeavored to cover her disappointment by saying she was satisfied. Between January and April, Horace came to the home frequently to see the children and Frances tried upon several occasions to discuss the matter of the divorce with him but he would reply, “Oh, forget it.” He would tell her that what he had done was for her best interest. She testified that he had her convinced there was nothing she could do about it. In April, 1925, she learned of the marriage of her husband to her former friend and confidante and of their secret love affair. The discovery of this fraud first crushed her, then caused her to act. In view of this evidence it is here that the time should start, if at all, upon which to base a charge of laches. It was at this time that Frances discovered the

After distinguishing the law of the case as found by the District Court of Appeal in Bowman v. Bowman, supra, and in view of the entirely different state of facts as shown by the evidence and findings on the second trial now before us, we must turn to the proper function of courts in dealing with fraud practiced upon them. In the case of McGuinness v. Superior Court, supra, we find that an almost identical state of facts as is here involved is defined as extrinsic fraud and that the court retained jurisdiction to set aside its decree, and its right so to do is not derived from section 473 of the Code of Civil Procedure, nor limited to the time therein specified. In the case of Ex-Mission L. & W. Co. v. Flash, 97 Cal. 610 [ 32 Pac. 600 ], it was held that a motion to set aside a judgment upon the ground of fraud in its procurement is not subject to the six-months’ limitation provided in section 473 of the Code of Civil Procedure and in the opinion in that case it is pointed out by the court that said section of the code while providing for relief in cases of “mistake, inadvertence, surprise or excusable neglect” does not include “fraud” among

The introduction of the additional evidence involved the question of fraud on the part of- appellant, Bryan Houston Bowman, and the determination of her rights involved a consideration of her acts and representations under the light of the law as to fraud. In the case of Dealey v. East San Mateo Land Co., 21 Cal. App. 39 , at 43 [ 130 Pac. 1066 , 1068], the court says: “Here the fraud is not against the defendant, but against the public. Pleading such a fraud is not a condition precedent to the court’s taking cognizance of it. As soon as it is disclosed to the court, whether alleged in the proceedings or not, that the contract between the parties contemplates a fraud upon the public, it must sua sponte refuse to grant any relief to either party based on such contract. (Citing cases.) It is the duty of courts to protect the public at all times against fraud and one way of doing so is by closing the doors to would-be or actual perpetrators of such fraud who would fain make use of the court to divide the spoils between them.”

In Mitchell v. Cline, 84 Cal. 409 [ 24 Pac. 164 ], we find the court quoting Pomeroy’s Equity Jurisprudence, section 401, as follows: “Where two or more have entered into a fraudulent scheme for the purpose of obtaining property in which all are to share, and the scheme has been carried out so that all the results of the fraud are in the hands of one of the parties, a court of equity will not interfere on behalf of the others to aid them in obtaining their shares, but will leave the parties in the position where they placed themselves."

Ignoring for the moment the children of Prances and Horace, let us find who were the parties interested in the original divorce action. The record discloses Frances C. Bowman as plaintiff and Horace D. Bowman as defendant. The case of Lane v. Superior Court, 104 Cal. App. 340 , at 345 [ 285 Pac. 860 , 863], clearly protrays the true parties to every marriage contract when an action comes before the court for an interlocutory decree. “There are two major reasons why the law requires a year to intervene between the interlocutory and the final decree of divorce. One is to permit the determination of the paternity of children and the other, not less of interest to society, is to

The question squarely before this court is, Shall Bryan Houston Bowman be allowed to take advantage of her own fraud and stand on the technical ground of lack of legal notice and a finding of laches against an innocent party, made by a court before which these facts did not then appear, or, shall the court purge its records of the fraud 1

Society is entitled to a condemnation of the tactics of Bryan Houston Bowman. We should permit this mother and defrauded wife to re-establish her home and family. In the case of Rehfuss v. Rehfuss, 169 Cal. 86 [ 145 Pac. 1020 , 1022], our Supreme Court directed attention to the

In the case at bar we find fraud practiced upon the court, upon society, and upon three children, two born prior to the divorce proceedings and the third after the final reconciliation and condonation. The fraud which permeates this ease cannot be condoned by the court, and cannot be allowed to brand this third son with the stigma of illegitimacy. Preservation of the sanctity of the marriage state is essential to the continuance and betterment of organized society. "The state has an interest in the maintenance of the marriage tie which neither the collusion nor the negligence of the parties can impair.” (Rehfuss v. Rehfuss, supra.) A full consideration of the law and the evidence leads to but one conclusion, that the judgment of the trial court should be affirmed. It is so ordered.

Marks, Acting P. J., and Jennings, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on September 23, 1932, and the following opinion then rendered therein:

Counsel for appellant in their petition for rehearing do not seem to grasp the underlying reasons for our affirmance of the judgment of the lower court.

Bryan Houston Bowman filed her cross-complaint in the court below seeking to vacate an order of the superior court which set aside the final decree of divorce terminating the

Petition for rehearing denied.

Marks, Acting P. J., and Jennings, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on October 27, 1932.