Miller v. Miller

On December 8, 1941, plaintiff procured an interlocutory decree of divorce from defendant. The decree provided that defendant, a schoolteacher, should pay to plaintiff $40 a month for her support and maintenance and $20 a month for the support and maintenance of the minor child of the parties, custody of whom was awarded to plaintiff. The decree further provided that defendant was to pay for all reasonable and necessary medical and dental care and treatment of the child. At the time of entry of the interlocutory decree, the child was two years of age and suffered from asthma. On January 18, 1943, defendant procured entry of the final decree upon presentment of an affidavit averring that he had fully complied with the provisions of the interlocutory decree and was not in default thereof. This affidavit was executed in Oregon where defendant was then stationed in the Army of the United States. In June, 1943, plaintiff moved to set aside the final decree on the ground that it had been procured by fraud in that at the time of its entry defendant, contrary to his affidavit, was in default in the payments required by the interlocutory decree. On June 21, 1943, less than six months after…

I dissent. It appears from the record in this case that a charge was made in the affidavit in support of plaintiff’s motion to set aside a final decree of divorce that defendant falsely stated in his affidavit in support of his motion for the final decree that he had complied with all of the terms of the interlocutory decree; that decree declared that plaintiff was entitled to a divorce. Without passing on the question of whether a final decree of divorce may be set aside for fraud where that charge is based upon an allegedly false statement in the supporting affidavit for the final decree that the payments for support and medical care ordered by *127 the interlocutory decree had been made, it is clear that defendant in this ease is entitled to the relief authorized by the Soldiers’ and Sailors’ Belief Act of 1940 (50 U.S.C.A.App. § 521). That act reads;

It must be remembered that the basis for denying a final decree of divorce upon the ground of the failure of the movant to comply with the terms of the interlocutory decree is that the movant has willfully failed to comply with the decree, is in contempt of court, and that for those reasons equity will not act to grant the final…