DEWEY A. DYE, AS ADMINISTRATOR AD LITEM OF THE ESTATE OF L. N. DOLBECK, DECEASED,
v.
ESTELLE DOLBECK
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The Florida Supreme Court affirmed the vacation of a divorce decree procured by fraud regarding residency requirements. The husband obtained a divorce without satisfying Florida's residency requirement, and his widow successfully challenged the decree after his death based on the husband's fraudulent misrepresentation to the court.
The court affirmed the vacation of the divorce decree, holding that the wife presented clear and convincing proof of fraud on the court regarding her husband's false representations about his residency in Florida for the required period to obtain a divorce on grounds of desertion.
“a court should only vacate its solemn decrees upon clear and convincing proof of matters in pais that are offered as a ground for. setting them, aside on the ground of fraud in their procurement”
Establishes the standard of proof required to vacate a decree based on fraud
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Join FLexlaw to unlock all legal intelligenceDewey Dye (as administrator of the deceased husband's estate) appealed the vacation of a divorce decree. The husband, Dolbeck, filed for divorce on Au…
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— This was a proceeding by a petition or motion in chancery to vacate a divorce decree after the death of the original complainant, on the ground that a fraud had been perpetrated on the court by complainant with respect to-the jurisdictional allegation and proof required to show that complainant had resided in this State .the period of time specified by Section 4981 C. G. L., 3189 R. G. S., prior to the institution of his suit for divorce from his wife on the ground of desertion.
The attack, on the divorce decree was made by the wife about three months after the divorce decree in the husband’s favor had been entered. In the meantime the death of the husband had occurred. The record shows that Dolbeck filed his suit for divorce on August 12, 1932. Subpoena was personally served on the defendant wife in Hills-borough County on’August 15, 1932. On September 7, 1932, a divorce decree was entered, the wife having allowed a decree pro confesso to be taken against her in the meantime. Ten days after obtaining his divorce, Dolbeck, the *867husband, died in Ticonderoga, N. Y. On December 23, 1932, not quite three months later, Mrs. Dolbeck filed her petition to vacate the decree on the ground of her husband’s fraud on the court in making it appear that he was entitled to such a divorce in Florida under our statutes, whereas in truth and in fact he had not been a resident of Florida for a sufficient length of time to give him the right to obtain a divorce on the ground of desertion.
The administrator - of Dolbeck, the deceased husband, took issue on the wife’s petition and denied the fraud on the court. A full hearing was had on the issues and the Chancellor held thereon that the fact of fraud had been sustained and accordingly vacated the decree of divorce. The appeal now before us is from the order vacating the decree of divorce, setting it aside and declaring it null and void.
We are unconvinced that there is no error in the order which is based largely, if not wholly, on conflicting evidence as to the truth of the allegations of the wife’s petition. While a court should only vacate its solemn decrees upon clear and convincing proof of matters in pais that are offered as a ground for. setting them, aside on the ground of fraud in their procurement, this Court cannot say that the evidence in the present case does not measure up to the essential requirements of the. law in this particular; so the order appealed from should be affirmed and it is so ordered.
Affirmed.
Davis, C. J., and Ellis and Terrell, J. J., concur.
Whitfield, P. J., and Brown and Buford, J. J., concur in the opinion and judgment.
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Lake v. Lake, 103 So. 2d 639 (Fla. 1958)…, disposing of the litigation with the single word: “Affirmed.” It is petitioner’s position that the Supreme Court should grant the petition because facts of the present case are “very similar” to those with which this court dealt in Dye v. Dolbeck, 114 Fla. 866, 154 So. 847, when an opinion was rendered with which, so he. contends, the effect of the ruling of the Circuit Court for Pinellas County in the present case, approved by the District Court of Appeal, is in conflict. Simple as the situation appears…
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Grammer v. Grammer, 80 So. 2d 457 (Fla. 1955)…5 when he saw him in New York City. The burden was on the plaintiffs in the court below, the appellees here, to .establish the charges of fraud made against William in the procurement of the divorce by clear and convincing evidence, Dye v. Dolbeck, 114 Fla. 866, 154 So. 847, especially “where the party charged with the fraud is dead.” Barnes v. Willis, 65 Fla. 363, 61 So. 828, 829. This is particularly true where inquiry was made and evidence taken in the question of diligent search in the proceedings for…
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Martz v. Riskamm, 144 So. 2d 83 (Fla. 1st DCA 1962)…Jefferson County Circuit Court. Other points raised by appellant have been fully considered and we find same without merit; therefore, the decree of the Chancellor is affirmed. CARROLL, DONALD K., C. J., and STURGIS, J., concur. . Dye v. Dolbeek, 114 Fla. 866, 154 So. S47 (1934). . Grammer v. Grammer, 80 So. 2d 457 (Fla.1955). . Bemis v. Loftin, 127 Fla. 515, 173 So. 683 (1937); State ex rel. Willys v. Chillingworth, 124 Fla. 274, 168 So. 249 (1936). . Corbett v. General Engineering & Machinery Co., 1…
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