Buck v. Buck

Pending a divorce suit of Florence Buck against Delta Buck, the parties entered into this agreement: "The said parties * * * desiring to settle their property rights, do hereby agree that the said Delta D. Buck shall pay to said Florence E. Buck the sum of $1080.00, in payments of $30.00 each month, beginning on December 1, 1937 and a like sum on the 1st day of each month thereafter until the sum of $1080.00 shall be fully paid. The said Florence E. Buck is to have nothing further in and to the estate and property of the said Delta D. Buck of which he is now possessed or that may be hereafter acquired by him." Following the agreement a decree of divorce was awarded Mrs. Buck, which contained this recital and adjudication: "and counsel for the parties, plaintiff and defendant, having represented to the Court that the matter of alimony has been settled out of Court and an agreement in writing to that effect having been exhibited to the Court, it is therefore adjudged, ordered and decreed that the said Delta D. Buck do pay unto the said Florence E. Buck, as alimony for a period of thirty-six months, for the support and maintenance of the said Florence E. Buck, the total sum of $1080.00, payable in monthly installments of $30.00 each on the first day of each and every month hereafter, in each year during the period of thirty-six months, the payment of the said installments to commence on the 1st day of December, 1937, and to continue during the period above described."

At the succeeding term of the circuit court Mrs. Buck filed a petition setting up what had previously occurred in the divorce suit; alleging that the agreement between herself and Mr. Buck was not intended as a settlement of alimony but purely as an adjustment of a money loan from her to him, and if the agreement should be properly construed as an alimony settlement, then it was procured by misrepresentation and fraud; and praying that the divorce decree be corrected and alimony awarded. The circuit court sustained a demurrer to the petition, and upon joint motion of the parties, certified here its sufficiency.

It is contended in support of the demurrer that the petition does not present the "altered circumstances or needs of the parties" prescribed by Code, 48-2-15 as the basis for "a new decree" in a divorce suit after a decree concerning maintenance; and also that the matters contained in the petition may be presented only in an original bill of complaint attacking the divorce decree upon the grounds of fraud.

We see no need of defining the petition closely. The final decree in the divorce proceeding recites that the agreement between the parties was exhibited to and construed by the circuit court as an alimony settlement. By its terms, the agreement purports to be a property settlement only. Hence, the construction of the circuit court, so far as it depended on the instrument itself was a mistake in point oflaw. "Error in law lies where upon the facts apparent of record, the judgment is improper." Campbell v. Patterson, 7 Vt. 86,89. Accord: O'Brien v. Connor, 2 Ball and B. 152; McDougald v. Doughtery, 39 Ala. 409, 423. The ordinance of Lord Chancellor Bacon, providing that a timely bill of review should lie for apparent legal error in the body of a final decree, "has never been departed from" by the courts of equity in the United States. Dexter v. Arnold, (Fed. Cas. No. 3856) 5 Mason 303, 310. This Court has repeatedly recognized that practice.Nichols v. Nichols, 8 W. Va. 174, 182, et seq.; Dingess v.Marcum, 41 W. Va. 757; Weldon v. Callison, 119 W. Va. 306. The fact that counsel for Mrs. Buck induced, in part, the erroneous decree, does not preclude a bill of review. "The plaintiff may have a bill of review, to review a decree made for himself, if it be less beneficial to him than in truth it ought to have been." Vandebende v. Levingston, 3 Swanson 624. Accord: Justice Story in Dexter v. Arnold, supra. In chancery pleadings, substance rather than label is regarded. If a complaint styled a "petition" contains allegations requisite ina bill of review, the complaint will be regarded as such bill.Sturm v. Fleming, 22 W. Va. 404. Consequently, we are of opinion that this petition may be appraised and upheld as a bill of review.

The ruling is reversed and the cause remanded.

Reversed and remanded.