Houston v. Houston ( 1965 )

Gordon, J.

“Hateful to me as are the gates of hell,

Is he who, hiding one thing in his heart,

Utters another.”

Homer — Iliad (Book IV, L. 386)

Mrs. Houston made numerous allegations of fraud, some of them rather flagrant ones. It does not appear that at the hearing she offered any evidence to support her charge that her previous attorneys had participated in the alleged fraud, nor did she attempt to prove that her former husband had concealed any of his assets.

The principal claim which Mrs. Houston sought to establish at the hearing was that relating to Mr. Houston’s understatement of the stock values; however, she was prevented from presenting this evidence because the trial court consistently sustained objections in regard to such proof in apparent reliance upon an erroneous interpretation of Weber v. Weber (1952), 260 Wis. 420, 51 N. W. (2d) 18. In both this court and in the trial court, counsel for Mr. Houston maintained that under the rule of Weber if the husband’s various assets were disclosed, the court could not permit an inquiry into their value.

The Weber Case involved the concealment of property, but the case does not hold, nor does it even follow from such case, that misrepresentations as to value are irrelevant in the search for fraud. In Barrock v. Barrock (1950), 257 Wis. 565, 569, 44 N. W. (2d) 527, this court said:

“It was plaintiff’s duty to establish the true value of his property at the trial, and to give minimized figures would constitute a fraud upon the court.”

Both the Weber Case and the Barrock Case were discussed in 1954 Wisconsin Law Review, 464, 478, 479, in an article by Harold A. Konnak entitled Survey of Wisconsin Domestic Relations Law, 1946-1953. At page 480, the author presents the following conclusion:

“Thus it would appear that any suppression of true values or concealment of assets by either party in a divorce suit would permit the aggrieved party to vacate the judgment of divorce in equity, at least so far as it relates to property division or allowances.”

Minor variances in opinion as to the value of closely held securities would probably not support a finding of fraud. Nevertheless, proof as to value is at the very least germane to an inquiry into alleged fraud. This is particularly true when the variances are as great as are alleged in the instant case. For example, the plaintiff attempted to present proof of value by evidence as to actual sales of stock during the period involved; it was error to have sustained objections to such testimony.

While the effect of the one-year provision of sec. 269.46, Stats., on the court’s right to re-examine the judgment because of an alleged fraud on the court was not raised by the parties in the instant case, we note that in the Weber Case over two years elapsed between the date of the divorce and the claim of fraud, yet this court permitted an inquiry into such fraud.

We express no opinion whatsoever as to the merits of Mrs. Houston’s allegations. Our holding goes no further than to conclude that she was not given an adequate opportunity to prove her allegation that Mr. Houston had fraudulently misrepresented the value of his holdings.

By the Court. — Order reversed, and cause remanded for further proceedings.