Jelm v. Jelm

This cause comes to this court on appeal on questions of law from an order of the Common Pleas Court granting the defendant's motion to vacate a decree of divorce entered at a previous term and returning the case to the active list for trial. The parties to the action were married September 26, 1942, and four children have been born of the marriage, the last child having been born on May 30, 1948.

The plaintiff filed her petition for divorce on September 6, 1947. Prior to filing her petition for divorce, the parties had agreed to a property settlement and separation agreement which was signed on August 2, 1947. The summons for divorce was served on the defendant on October 4, 1947, in Akron, Ohio, the defendant having gone to the courthouse in Cuyahoga county for the purpose of being served. However, return day had passed so that service could not then be made under the original praecipe. On October 6, 1947, the defendant procured the plaintiff's signature to an amended property settlement and separation agreement which he himself had rewritten and which provided in part that the defendant was to pay or return to plaintiff $5,000 of her money which had been used by the parties to buy securities and $600 which plaintiff had advanced for the purchase of an automobile and, further, to pay the plaintiff $100 per month as support for the children. The plaintiff was to have all the furniture and the defendant his personal effects and the automobile.

After the service of summons, the terms of the agreement as to division of property were carried out, and the defendant since that time has paid $100 per month for the support of the children.

The defendant, in contending that fraud was practiced on him in procuring the divorce, relies strongly on an occasion when he was first told of the fact that plaintiff was pregnant with the fourth child, in a long-distance telephone conversation on October 18, 1947. At that time the defendant was in Boston, Massachusetts. He also claims it was about that time that he first learned of an occasion in 1946 of plaintiff's infidelity with one Helbig, whereupon the defendant drove to Cleveland, arriving the morning of October 19, 1947, and found Helbig in the home of the parties, in the act of dressing, and the plaintiff still attired in her night dress. The defendant testified that on this occasion he told plaintiff he would never permit her to have a divorce.

The defendant in his brief refers again and again to the October 19, 1947, incident, and the evidence of infidelity occurring on the Boston trip in 1946, yet the record does not show that he evidenced any particular concern about it at that time. There is no dispute in the record that the parties lived together as man and wife after the defendant was served with summons and after the occasion just described as well as after the divorce was heard and granted on March 6, 1948. Prior to the trial of the case, the defendant, who was out of the city a great deal of the time during that period, received a letter about December 10, 1947, while in Boston, from the plaintiff's lawyer, advising defendant that he had not filed an answer and that the case could be tried at any time. Upon receipt of such letter the defendant called the plaintiff and in an attempted explanation plaintiff told him the letter was a mistake.

The defendant's testimony tends to establish that plaintiff on a number of occasions promised not to go forward with the case although the defendant does not say that the plaintiff agreed to dismiss the action.

It is the plaintiff's contention that there was never any question that the divorce case would be heard, but that they both agreed to conduct themselves in such a way as to keep their respective families and friends from finding out about it. They, therefore, continued to cohabit as man and wife. This version of the understanding of the parties, in part at least, is supported by the defendant's testimony which, after describing his hurried return from Boston on October 19, 1947, above referred to, was as follows:

"Q. What did you say to your wife, if anything? * * * A. I don't think I said much of anything at that minute.

"Q. Was there anything said about the case then? A. After Mr. Helbig left, she was merely my wife and I talked at that point and I told her under no circumstances would I give her a divorce.

"Q. Had you had your summons at that time? A. Yes, sir.

"Q. Then what did you say to her? A. She maintained that she wanted the divorce.

"Q. What did she say beyond that? A. She said she still wanted the divorce and I said it was out of the question, in view of her condition, and the end of the conversation was that she agreed unconditionally to take no action on the divorce until after the baby was born and then reconsider it.

"* * *

"Q. What did she say? The court indicated you can only tell what she said. A. She said, `All right, I won't get the divorce until after the baby is born and we will talk about it then.'

"Q. Is that one of the things you relied upon? A. It is."

As above indicated, it is to be noted that the defendant did not express any very great concern over the conditions he found on that occasion. In fact there is evidence in the record which tends to establish that he and his wife had dinner with Helbig at plaintiff's mother's home in Akron that evening.

The evidence is not greatly in dispute that the defendant did not actually know the case had been presented to the court, a decree of divorce entered, and a journal entry filed (all of which took place on March 6, 1948, as above indicated) until just before the first of September 1948. There was then a complete separation of the parties and the plaintiff married Helbig in New York City on October 5, 1948.

This motion to vacate the decree and judgment of divorce was filed October 12, 1948.

The record presented on this motion clearly indicates that defendant is entitled to little consideration. His conduct has been such that if his interests were the sole consideration of the court the motion should have been overruled.

The plaintiff in presenting her evidence at least attempted to give an accurate statement of the facts, without regard to the extent of the damage that many of the admissions had upon her defense to the motion to vacate. But as indicated above, the evidence is undisputed that the parties cohabited together as husband and wife in exactly the same way as they had done prior to the commencement of the case. Whatever grounds the plaintiff had that would justify a divorce decree in her favor because of the aggression of the defendant were condoned by such continued conduct. No secret intent, even if agreed to between the parties, could destroy the legal effect of cohabitation as man and wife during the pendency of the divorce action, and if this fact had been brought to the attention of the court at the time of trial the court would have denied the prayer of the plaintiff. The evidence establishes that when plaintiff presented her case to the court, in the absence of the defendant who was out of town at that time, nothing was said that would even suggest that the parties had not been separated as the result of the defendant's alleged wrongful conduct, and in fact a separation agreement was presented to the court which indicated that a separation had taken place.

We are presented therefore with two questions: (1) Does the court have power to vacate a judgment of divorce after term on the ground of fraud practiced on the court by the successful party? (2) Does continued cohabitation of the parties as man and wife, after filing a petition for divorce, which fact is not disclosed to the court upon trial, constitute such a fraud upon the court as to require it to vacate such decree when such facts are brought to its attention after term?

The plaintiff presents other claims of error but they are not supported by the record.

The Supreme Court of Ohio in the case of Parish v. Parish,9 Ohio St. 534, 75 Am. Dec., 482, held:

"A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill filed at a subsequent term."

That case has had a stormy career and on a number of occasions has been somewhat modified, but it has never been overruled so far as it prohibits the vacating of that part of the divorce decree which dissolves the marital relations between the parties, after term, otherwise than by the regular rules of appellate procedure.

In 14 Ohio Jurisprudence, 444, Section 59, the author, in considering the power of a court to vacate a decree of divorce after term, said:

"At subsequent term. — It is well established in Ohio, as a general rule, subject to exceptions in certain cases hereinafter noted, that a decree granting a divorce, although obtained by fraud and false testimony relating either to the jurisdiction of the trial court or to the merits of the case, cannot be set aside on an original petition filed at a subsequent term of the court. And this is true even though jurisdiction of the defendant in the divorce action was obtained by means of publication only, the provisions of Section 11632, General Code, relating to the opening of judgments and orders obtained without service other than by publication, being inapplicable to such cases. This rule is based upon `the principle of public policy * * * that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened.' Such a course, it is said, `would endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who, wrongfully perhaps, procured its promulgation.' It has been applied in a proceeding to vacate a decree upon the ground that it had been subsequently discovered that the defendant was insane during the pendency and trial of the action and also at the time of the commission of the acts for which the divorce was granted. The rule is limited, however, to adjudications affecting the marriage status, and does not extend to such portions of a decree, in such case, as deals with the property rights of the parties. So, when the court rendering a decree adjudicating the rights of the parties with respect to alimony or other property interests does not have jurisdiction of the person of the defendant, he or she may thereafter have such decree opened up, insofar as it relates to the defendant's interest in the plaintiff's property, and be let in to defend. It is also well established, as a further modification of or exception to the general rule that a divorce decree will not be opened up or vacated at a subsequent term, that where the jurisdiction of the court in a particular case is obtained by means of fraud of such nature as to cause the record to speak falsely, a judgment or decree rendered therein may be set aside for such cause at a subsequent term * * * Also, where a divorce decree is invalid or voidable for fraud, and the reasons for such invalidity are apparent on the face of the record, it will be vacated. A further exception to the general rule against the opening up of a divorce decree at a subsequent term exists in the case where it appears that the court did not have jurisdiction over the defendant, by reason of the insufficiency of the service or publication of process. In such case the decree will be set aside, although the plaintiff may have married again in the meantime. But a divorce decree obtained upon service of process by publication only will not be set aside on account of the failure to attach a copy of the petition to the notice mailed to the defendant, where the defendant fails to satisfy the court that he had no actual notice of the proceeding, under the provisions of Section 11632, General Code. The fact that the party on whose application a decree of divorce has been granted marries again during the pendency of proceedings in error to reverse the judgment awarding such decree will not constitute a bar, on the ground of public policy, to the vacation of such decree upon the reversal of such judgment; at least, where such vacation is asked upon the ground that the decree was procured by fraud."

The case of Mulligan v. Mulligan, 11 C. C. (N.S.), 585, 21 C. D., 89, was tried in the Circuit Court in December 1908. The court criticized the social wisdom of the Parish case, supra, and gave a number of circumstances where the law of the case would work unusual hardship to established family relations. The court conceded, however, that there is "much to be said on the other side" of the problem, and at page 592 said:

"We frankly admit that we have sought in vain for a solution of this question which will do justice to both of these victims of this perjured husband * * *."

The facts alleged in the Mulligan case, supra, presented a case of fraud practiced on the court and the defendant, equally as flagrant as the facts in the Parish case. The defendant, in the motion filed after term to vacate a decree of divorce, charged that the plaintiff husband was not a resident of Ohio or of Mercer county, where the action was filed, for the length of time required by statute, and that the plaintiff's affidavit for constructive service was untrue because he knew at all times where the defendant could be found. Likewise, it was alleged that the evidence upon which the decree was entered was perjured. After the decree was entered the plaintiff remarried. The Common Pleas Court sustained a demurrer filed by the plaintiff to defendant's motion to vacate, which motion was based on grounds of fraud under the provisions of Sections 5354 and 5355, Revised Statutes (now Sections 11631 and 11632, General Code). The court, as shown by the second paragraph of the syllabus, held:

"A decree of divorce obtained by fraud and perjury, on the facts being shown, may be set aside after the term at which the divorce was granted, and notwithstanding remarriage of the guilty party. Parish v. Parish, 9 Ohio St. 534, and earlier Ohio decisions not followed."

The Supreme Court in Mulligan v. Mulligan, 82 Ohio St. 426,92 N.E. 1120, without opinion, reversed the Circuit Court and affirmed the ruling of the trial court by the following entry:

"Judgment reversed and judgment of the Court of Common Pleas affirmed on authority of Parish v. Parish, 9 Ohio St. 534."

That case was decided in 1910.

The Supreme Court of Ohio, in the case of Bay v. Bay, 85 Ohio St. 417,98 N.E. 109, again affirmed the principles of theParish case as to the finality of the decree, after term, dissolving the marital relationship. The Bay case dealt only with property rights, the alleged offending husband having died before the petition to vacate the divorce was filed. The court at page 426 of the opinion said:

"If this petition, and the answer to be filed in the original case and the amendment thereto, together with the affidavits in support thereof, are to be taken as true, the court was grossly imposed upon and she was fraudulently deprived of an opportunity to defend her rights upon the hearing of the divorce case. But it is conceded that the ruling in Parish v. Parish, 9 Ohio St. 534, which has been steadily adhered to, would preclude any reconsideration of the divorce issue, even if the husband were not now dead.

"The question still remains, Can the defendant be at the same time thus fraudulently deprived of her property rights without remedy? We see nothing in the judgment or in the reasoning inParish v. Parish which would justify its extension to this phase of the present case. That case was expressly limited in the opinion as follows: `We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of cases, forbids us from setting aside a decree of divorce avinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term.' We think that it would be doing violence to the language of the court to hold that `sound public policy' would protect the fruits of fraud and perjury beyond the mere severance of the marriage relation.

"An analysis of the cases will disclose the fact that this court has always clearly distinguished the reviewable nature of a judgment in a divorce proceeding respecting property interests, from the finality of the divorce; and that it has gone beyond this, in certain cases and in furtherance of justice, to declare that the wife may maintain an action for alimony as `wife' although by reason of a previous dissolution by a decree of divorce the matrimonial relation no longer exists. See Mansfield v. McIntyre et al., 10 Ohio, 27; Cox v.Cox, 19 Ohio St. 502; Cox v. Cox, 20 Ohio St. 439; Woods v.Waddle, 44 Ohio St. 449; McGill v. Deming, 44 Ohio St. 645;Weidman v. Weidman, 57 Ohio St. 101; Doerr v. Forsythe, Admx.,50 Ohio St. 726; Coffman, Admr., et al., v. Finney, Admr., etal., 65 Ohio St. 61; Hassaurek v. Markbreit, Admr., 68 Ohio St. 554. "

The syllabus provides:

"Where a husband, by fraud and false testimony, obtains a decree of divorce for the wife's aggression and the decree also, by reason of the wife's aggression, so found, bars her of alimony, dower and all other interest in the husband's property, the decree dissolving the marriage relation is conclusive; but, when the court making such decree did not have jurisdiction of the wife's person, she may thereafter have said decree and the issues opened up so far as they relate to her interests in the husband's property and be let in to defend."

That case was decided February 12, 1912. It clearly maintains the public policy of the state as announced in the Parish case, with regard to the finality of that part of a divorce decree which dissolves the marital relations of the parties where the court, as in the instant case, had acquired jurisdiction of the parties and has by law jurisdiction of the subject matter of the case.

The claim that the public policy of the state was changed by the constitutional amendments of 1912 (adopted September 3, 1912) is unfounded. The right to a review of a decree of divorce on questions of law, including the dissolution of the marital relationship, by the Court of Appeals was clearly established by Section 6, Article IV of the Constitution, as amended and effective September 3, 1912. But such right to prosecute an appeal on questions of law, within the provisions of the statute providing for appellate procedure, is not to be confused with an attempt to vacate such decree under Section 11631, General Code, after term and after the time for appeal has been permitted to lapse. The case law of the state is in unambiguous terms that the provisions of Section 5354, Revised Statutes, which became effective in 1879 (now Section 11631, General Code), do not apply to divorce cases.

The cause of Beck v. Beck, 45 Ohio App. 507, 187 N.E. 366, and 48 Ohio App. 105, 192 N.E. 791, is of no assistance to this defendant.

The first case was one in which the plaintiff by separate action was seeking to reverse an adverse ruling wherein he was seeking to procure the vacation of a decree of divorce and an order to pay alimony in an independent action wherein defendant in error was plaintiff and plaintiff in error was defendant. The grounds upon which he based his right to vacation of the decree, as shown by the amended petition filed after term, were that the decree was procured by fraud and that the court was without jurisdiction.

The Court of Appeals found the appeal was not well taken on the question of fraud in procuring the divorce decree and would have likewise disposed of the question of jurisdiction to enter a decree of alimony to be paid out of the defendant's property then within the jurisdiction of the court had it not been for the fact that there was an unsurmountable defect in the affidavit filed in the case, upon which constructive service was based. The court thereupon held that, because the court was not vested with jurisdiction of the person of defendant in the divorce action, it was without power to enter a decree. It was therefore held that the trial court should have vacated the decree. The decision was founded entirely on the fact that the court hearing the divorce case was without jurisdiction of the person of defendant. The court then said that the record disclosed that the plaintiff in error started an action in Ashland county but because of this proceeding it must be considered that he abandoned such action and entered his appearance in the Coshocton county case and should be permitted to file his answer in such action.

Thereafter, the plaintiff in error was granted a decree of divorce in the Ashland county case, the defendant in error not having answered because the Court of Appeals had said that the plaintiff in the Ashland county case must have abandoned such case, having entered his appearance in the action in Coshocton county. The jurisdiction of the Coshocton county Common Pleas Court was transferred to Tuscarawas county on what was held to be a motion for change of venue. The plaintiff in that case then asked for an order for temporary alimony. This motion was opposed by the defendant on the ground that the issues in that action had been concluded by the divorce decree granted him in the Ashland county action. The trial court overruled the defendant's plea of res judicata, and the Court of Appeals affirmed such ruling.

Nowhere in either of those cases was the power of a court (having acquired jurisdiction of the parties) to vacate a decree of divorce entered therein after term considered. And even if by any stretch of the imagination what the court in the last appeal said in regard to the Parish case could be understood as opposed to the theory of the Parish case, such court of course could not overrule the Supreme Court.

The holdings of our courts on this subject are not without support in other jurisdictions.

In the case of Zeitlan v. Zeitlan, 202 Mass. 205,88 N.E. 762, the court said at page 207:

"This is a petition to vacate a decree of divorce obtained by the respondent against the petitioner. The jurisdiction of the court that granted the divorce, both over the case and the parties, was perfect. The ground on which the petition rests is that the case for a divorce was made out at the hearing by perjured testimony, knowingly procured by the libellant. The only question presented is whether a decree of divorce so obtained should be vacated upon proof of the fraud practiced upon the court.

"It is in the interests of justice that, after a trial and final judgment in a case, the matters heard and adjudicated shall not be opened for a further hearing because of a supposed error in the determination of facts by the tribunal that heard the evidence. A contention that some part of the material testimony was false might be made with plausibility in a large proportion of the cases that are tried. A contention that the prevailing party knowingly gave or procured false testimony, upon an issue involved, might be made and strongly supported in a great many cases. It is against public policy to open cases on no other ground than this."

In Clarke v. Clarke, 262 Mass. 297, 159 N.E. 750, the second paragraph of the syllabus provides:

"Allegations presented in a petition by a libellee filed three years and eight months after the entry of a decree absolute and seeking that such decree be vacated, to the effect that the petitioner had not committed adultery, which was the sole charge made in the libel; that she was induced to make admissions of guilt by the threats and duress to which she was subjected by the libellant; and that the libellant after the decree became absolute had made false representations and promises which he did not fulfill, furnish no ground for vacation of the decree, it appearing that the court had jurisdiction of the case and that the libellee had not been wrongfully deprived of her day in court."

See, also, Nation v. Nation, 206 Ala. 397, 90 So. 494.

It is not to be supposed that the decisions are uniform upon this subject. In 3 Nelson on Divorce and Annulment, 187, Section 28.31, the author says:

"In a number of instances it has been held that it is such fraud as to warrant the vacation of a divorce decree that it was applied for and obtained by the opposite spouse after a pretended reconciliation and without warning or advising the other party of intention to do so. In several instances, it has been held to be such fraud as to warrant setting aside a decree that the spouse who obtained it lulled his or her consort into the belief that the suit was nonexistant, or had been dropped, or would be dismissed. Where such circumstances are alleged, it is up to the court to which the application to vacate is presented to weigh and appraise the testimony and determine wherein the truth lies, and it must necessarily be given a fair range of judgment. If it does not appear that the applicant for relief from the decree was free from fault and has a meritorious defense, the application is properly denied."

The text just quoted is supported by the following cases:Haygood v. Haygood, 190 Ga. 445, 9 S.E.2d 834, andKronman v. Kronman, 129 Cal.App. 10, 18 P.2d 712.

In the Haygood case, the parties lived in Clayton county as husband and wife. The husband thereafter filed suit for divorce in Fulton county. After the filing of the divorce suit the husband told the wife that "he was not going through with the divorce," and they thereafter cohabited as husband and wife until the decree was taken. Paragraphs three, four, and five of the headnotes in the Southeastern Reports are:

"3. The constitutional provision that divorce suits shall be brought in county wherein defendant resides, if in state, or, if defendant be not a resident of state, in county wherein plaintiff resides, is mandatory and exhaustive, and jurisdiction cannot be conferred by consent, waiver, or otherwise on courts in other counties. Const. Art. 6 Sec. 15 Par. 1.

"4. On appeal from judgment overruling demurrer to petition in equity to declare divorce verdicts and decree void, no presumption of jurisdiction of court granting divorce can prevail on basis of such verdicts and decree, where petition charged want of jurisdiction of divorce suit because defendant, residing in state, did not reside in county wherein suit was brought at time of institution thereof.

"5. A petition, alleging that petitioner's husband, while residing with petitioner in a certain county, instituted divorce suit in another county, that they cohabited until granting of final decree, that he told petitioner at all times before final hearing and second divorce verdict that he was not going through with the divorce, that court did not have jurisdiction of parties, and that defendant swore falsely, that bona fide state of separation existed between parties, alleged sufficient grounds for declaring divorce verdicts and decree void for want of jurisdiction."

In the Kronman case, supra, the plaintiff filed an action for divorce upon which an interlocutory decree of divorce from the defendant was entered by default on plaintiff's complaint of extreme cruelty. Later without plaintiff's knowledge, the defendant requested the court to make its decree final, which was done without notice to the plaintiff and without her knowledge. There was evidence that the parties meantime had resumed marital relations, living together as husband and wife. The court held as shown by the headnotes in the Pacific Reporter:

"1. Court has inherent power, not limited by statute, to vacate decree obtained by fraud.

"2. That notice of motion to vacate decree stated it was made under statute and for fraud did not deprive court of inherent jurisdiction to vacate decree obtained by fraud.

"3. Law favors reconciliation between separated spouses.

"4. Obtaining final divorce decree, after reconciliation and resumption of marital relations following interlocutory decree, without notice or knowledge of other spouse, is extrinsic fraud as to both other spouse and court.

"Obtaining a final divorce decree under such circumstances is extrinsic fraud, not only as to the other spouse, but also in so far as the court itself granting such decree is concerned, since it is effected through concealment from the court in an ex parte proceeding of facts which the party requesting the final decree is bound to disclose, and which, if disclosed, would have rendered improper the granting and impossible the procurement of the final decree."

In the case of Walker v. Walker, 198 Wn. 150,87 P.2d 479, the husband brought an action for divorce after two previous cases brought by the wife had been dismissed, and an interlocutory decree had been entered in February 1932. The final decree was entered in April 1934. There was set off to the wife a fair proportion of the husband's property by such final decree. In bringing action to set aside the decree, the defendant wife alleged that after the interlocutory decree the parties had agreed to abandon the divorce proceeding and would, in an attempt to save some of their mortgaged property, work the home farm and resume their marital relation in every respect. The court held as shown by the Pacific Reporter headnotes:

"1. Whether a final divorce decree obtained by fraud should be annulled is within discretion of court which entered it.

"2. Where trial court refused to set aside final divorce decree entered by it on ground that it was procured by fraud, Supreme Court would assume that trial court was cognizant of its inherent power to set decree aside and either determined that fraud had not been committed or concluded that it was not for the public interest to annul the decree.

"3. Refusal by court which entered divorce decree to set it aside on ground it was obtained by fraud was not abuse of discretion, especially where wife alleged that husband and wife could not and would not assume their former relations, and findings indicated that it was highly improbable that a different property division would be made in another divorce action."

In the case of Nation v. Nation, supra, the husband had filed a petition for divorce against his wife on the ground of marital infidelity upon which a final decree had been entered. The plaintiff, by bill in that action, sought to set aside and annul the decree. The plaintiff's evidence showed that the final decree was entered June 17, 1919, but that the parties continued to live together as husband and wife until September 1919. When the plaintiff first learned of the divorce she left the defendant and did not thereafter sustain the marital relationship. It was further charged by the plaintiff that the infidelity charged against her in the divorce case was untrue and was supported by perjured testimony. She charged further that her husband had assured her the divorce case was filed in a fit of anger; that he would have it dismissed; that on subsequent occasions he told her the suit had been withdrawn; that he had no intention of getting a divorce; and that these assurances were confirmed by his continuing to live with her as husband. Upon these allegations the court sustained a demurrer to the plaintiff's bill and held, as shown by the Southern Reporter headnotes:

"2. One attacking a judgment for fraud, accident, or mistake must not only show that the judgment was the result of such intervention, but also that he was free from fault or neglect.

"3. Where wife was served with writ of subpoena in action for divorce, and husband stated he would have the suit dismissed, and continued to live with her after he was granted a default divorce without her knowledge, she was not entitled to have the decree set aside for fraud, where she made no effort to ascertain for herself the truth of her husband's representations.

"4. A bill to annul a default decree of divorce obtained by husband, upon the ground of husband's procurement of perjured testimony, was without equity."

The Nation case gives support to the plaintiff's theory of this case.

It is not suggested in any of the cases referred to in Nelson on Divorce and Annulment that, in the states where decrees of divorce have been vacated after term on the ground of fraud, questions of public policy were involved. In any event, the Supreme Court of Ohio has definitely held that the vacating of a decree of divorce after term, so as to recreate the marital relation, otherwise than in the regular channels of appellate procedure, is against sound public policy, and that the provisions of Section 11631, General Code, do not apply to that part of a divorce decree wherein the marital relation is dissolved, and although strong arguments against such holding have since been presented to the court on two occasions, the court has steadfastly adhered to the rule of the Parish case.

In 37 Harvard Law Review, 409, dealing with the doctrine ofstare decisis, the author quotes the following:

"`A deliberate or solemn decision of a court or judge, made after argument on a question of law fairly arising in a case, and necessary to its determination, is an authority, or binding precedent, in the same court or in other courts of equal or lower rank, in subsequent cases, where "the very point" is again in controversy; but the degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather than arbitrary or inflexible.'"

The Supreme Court has twice in clear and unmistakable terms affirmed the doctrine of the Parish case, supra, as a doctrine of public policy in this state. Until that court has overruled the legal principle of the Parish case, it is the duty of this court to abide by the decision.

There has been no radical change in the divorce problem since the last pronouncement of the Supreme Court in 1912. If anything, a more liberal view toward social betterment by affording relief from matrimonial obligation where harmonious family relationship is impossible seems to be at hand. The family unit is the base of our social organization. The protection and support of the family relationship and the obligation flowing therefrom must be the first consideration of the law.

The Legislature has by law provided ten grounds for divorce which is by far more liberal than the provisions in a great many other states, in some of which only one or two grounds are provided. The divorce problem is a most difficult one and when considered by our Legislature in recent years instead of making it more difficult to seek relief from matrimonial relationships, it has tried to help solve the problem by enacting additional restrictive regulations as a condition precedent to consummating the marital relation. Whatever change of procedure in dealing with domestic relations under changing conditions is necessary in solving these important social problems, it is for the Legislature and not the courts to point the way.

The rule of the Parish case was pronounced in 1859. The Legislature has never found it necessary to enact a contrary rule although it has twice dealt with related subjects. This court is therefore bound by the Parish case. The facts here presented, as above set forth, are not nearly as strong as the facts in the Parish case, supra, or the Mulligan case, supra. The defendant has little to recommend him to the court. The trial court in the divorce case undoubtedly had acquired jurisdiction of his person. By his conduct he condoned the claimed acts of aggression of the plaintiff. He remained with the plaintiff knowing full well that the divorce case was still pending, so he took part in the very fraud about which he complains. His suggestion that the plaintiff be put on probation to him until her conduct meets a standard which he should determine could be only the demands of a supreme egotist. The evidence shows that the parties could never join in a true family relationship, so that no social benefit will come of vacating this divorce decree.

But even though the facts are weak, because of the conduct of the defendant, the plaintiff's conduct in continuing to cohabit with the defendant after bringing her action for divorce is not to be recommended and were it not for the Ohio rule that it is against public policy to vacate that part of a divorce decree which has dissolved the marital relations of the parties, after term, in a case in which the facts could be said to justify such action when considered in the light of all the circumstances, I might come to a different conclusion.

Having concluded that the court is bound by the rule of theParish case, it is unnecessary to consider at length the question of continued cohabitation of the parties as husband and wife after one of the parties had filed a petition for divorce and the continuation of such relationship until trial, without making such facts known to the trial court at the time of trial, as constituting a fraud upon the court. It is enough to say, under the circumstances, that such conduct would, without question, constitute fraudulent conduct. The plaintiff on the trial of either a contested or uncontested case owes the duty to disclose the conduct of the parties after the institution of the divorce case. See Shinn v. Shinn (1947), 148 Neb. 832,29 N.W.2d 629, 174 A. L. R., 510.

Under the rule of the Parish case, supra, the motion should be overruled.