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Posted by: In: Newsletter Archive 25 Mar 2015 Comments: 0


(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

How many times have I heard this story… “My spouse defrauded me in the divorce but I believed everything he/she told me and “signed the papers.” Now, two years later, I have found out about all the lies but it is too late.” Not necessarily.

The Utah Court of Appeals recently released the case of Kartchner v. Kartchner. Talk about a soap opera! This was the appeal of a case in our own fourth district court with Judge Low, who was upheld on all counts.

The short version is that the Husband and Wife married in 1976. Later, 22 years later, Wife filed for divorce and they signed a separation agreed that was filed with the Court. However, they did not divorce; they stayed together. Then in 2006 Husband wanted a divorce and they signed another agreement. This agreement gave Wife the house and about $23,000 a month in support (Yes the comma is correct; it is possible these people had more money than sense). However, again they reconciled. Neither of them did anything to dismiss the case though and the agreement remained in the court’s file.

Three years later, in 2009 Wife decides she wants a divorce. Soon thereafter Husband went to Eygpt for a month on a volunteer medical mission. When he returned Wife told him to stay in a hotel and left him an envelope with a copy of the proposed Divorce Decree. She said that this was just a “starting place” for them to negotiate the terms of the divorce. What she did not tell Husband was that her attorney had already submitted those documents to the court, based on the 2006 agreement they had previously signed. In fact, they were submitted to be finalized three days before Husband’s return from Eygpt. The Wife’s attorney sent a couple other documents to the court after the Husband returned and he received copies of those; however, Wife and Husband continued to negotiate the terms of the divorce.

In due course the judge signed the divorce decree a few weeks later and the divorce was final. Husband found out the next day. Because Husband hoped to reconcile with Wife, he did not seek legal advice. Obviously that did not work out as Wife began a relationship with a new boyfriend whom she eventually married in 2011. Only then did Husband figure out that he had better talk to an attorney.

Rule 60(b) of the Utah Rules of Civil Procedure states that if you want to set aside a divorce decree based on fraud or misconduct, you must do it within three months. However, the rule also states that it “does not limit the power of a court to entertain an independent action to relieve a party from judgment… for fraud upon the court.” In other words, you can file a separate lawsuit to try to obtain some relief from the prior order, on the basis of fraud.

The Wife claimed that, even though Husband was entitled to file a separate action, he should do so within the three months outlined in the rule. Wife also said Husband was careless or negligent in waiting so long to file his fraud case, i.e. two years after the divorce, and that laches should apply. Laches was defined as the “lack of diligence on the part of plaintiff and an injury to defendant owing to such lack of diligence.”

The appellate court disagreed, recognizing that nothing in Rule 60(b) says Husband’s carelessness in not filing his case within the limits of the Rule stops him from being able to file an independent action (separate lawsuit) for fraud on the court. Husband must establish “an intentional act by a party in a divorce action which prevents the opposing party from making a full defense” in order to prove fraud on the court. Husband was able to prove the facts above, and the Court reduced his alimony obligation considerably.

As an interesting side note, the Court also found that the “irreconcilable differences” in 2006 were not the same “irreconcilable difference” in 2009, since the parties had reconciled in the meantime. Since they had reconciled in 2006 after they signed their agreement, those 2006 differences as grounds for supporting the divorce were insufficient as a basis for the 2009 divorce. Therefore, the Court held that the 2006 agreement was void. The Husband was fortunate in this case, but he spent a lot of money to get there. Obtaining legal advice as soon as the divorce was entered would have been much cheaper and easier for him. “Penny wise and pound foolish” is a truism.

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