# Vandervort v. Vandervort

> Court of Civil Appeals of Oklahoma · December 30, 2005 · 134 P.3d 892

URL: https://www.frixlaw.com/law-library/cases/9796159

## Case

- **Full name:** Roger L. VANDERVORT, Plaintiff/Appellant, v. Patricia R. VANDERVORT, Defendant/Appellee
- **Court:** Court of Civil Appeals of Oklahoma
- **Decided:** December 30, 2005
- **Citations:** 134 P.3d 892; 2006 OK CIV APP 34; 2005 Okla. Civ. App. LEXIS 131; 2005 WL 3982757
- **Precedential status:** Published
- **Opinion:** Dissent by Gabbard
- **Judges:** John F. Reif
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

GABBARD, J.,
dissenting,
¶ 1 This case is a good example of how bad facts sometimes make bad law.
¶ 2 I do not disagree with the majority’s analysis of the facts in this case. It finds that Husband and Wife acted together to fraudulently obtain a divorce in Oklahoma County knowing that they were not residents of that county and were not incompatible. The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree. That relief should not be granted.
¶3 As the majority and the trial court have concluded, this case involves mutual fraud. It is not a case in which one spouse practices fraud upon the other in order to obtain an advantageous divorce settlement. Where both parties have participated in fraud upon the court, 24 Am.Jur.2d Divorce *896 and Separation § 438 (1998) sets forth the general rule:
[A] spouse who participates in the fraudulent procurement of a divorce decree, and who freely enjoys the fruits of the decree, will be unable to have it set aside under a rule allowing actions for relief from judgments procured by fraud....
A court of equity will ordinarily refuse to vacate a decree of divorce where its aid is made necessary by the fault or neglect of the applicant. (Emphasis added)
This rule is based on sound public policy and has been followed by Oklahoma courts since 1910.
¶ 4 In Newman v. Newman, 1910 OK 351 , 112 P. 1007 , the defendant husband obtained a divorce from the plaintiff wife after he convinced her that, if she would agree to the divorce and not claim his property, he would pay her $500 alimony, remarry her within three years, obtain a $5,000 life insurance policy in her favor, and allow her to remain on his land until that time. She agreed, and he obtained the divorce and paid the $500 alimony. Later, the defendant changed his mind and attempted to move the plaintiff off his land contrary to their pre-divorce agreement. As in this case, the plaintiff filed a motion to set aside the divorce on grounds of fraud, based on the defendant’s failure to comply with his promise. In refusing to grant the equitable relief requested, the Oklahoma Supreme Court stated:
There is nothing in the petition which would justify this court in setting aside the decree of divorce on the ground of fraud. The petition so to do discloses the same to have been obtained as a result of collusion between the parties, and this court will leave them where it finds them. The parties thereto are bound by it.
Id. at ¶8, 112 P. at 1010 . See also Erdman v. Erdman, 1914 OK 308 , 141 P. 965 . Similarly, in Green v. James, 1931 OK 75 , 296 P. 743 , the Supreme Court refused to grant equitable relief to either fraudulent party, stating:
It would be a special novelty for a plaintiff to address the tribunal with ‘the defendant and I have been playing a trick on this court, but I discovered he has got the better of me, so please turn the tables on him.’
Id. at ¶ 31, 296 P. at 746 (quoting 2 Bishop on Marriage, Divorce & Separation, § 1548).
¶ 5 Here, the majority refers to the above-cited cases, but argues that Meyers v. Meyers, 1948 OK 246 , 199 P.2d 819 , justifies setting this decree aside since this fraud so impeaches the moral sense that equity should step in. Meyers , however, is not applicable because the party requesting relief in Meyers was not involved in the fraudulent act of obtaining the decree and did not know about the divorce until after it was entered. Meyers is a case in which one party committed fraud upon another to obtain an advantageous divorce settlement. Such is not the case here.
¶ 6 Here, Wife was not incompetent at the time of the decree, nor did Husband fraudulently promise to care for her in order to obtain an advantageous divorce decree. On the contrary, the evidence clearly establishes that Wife wanted this divorce, participated in obtaining it, and did not seek relief from it until she suffered from an unanticipated event — Husband’s alleged refusal to care for her. This alleged conduct occurred after the decree was entered.
¶ 7 Title 43 O.S.2001 §§ 204 and 205 permit married parties to enter into agreements settling property and support issues in anticipation of divorce. Such agreements may be enforceable in a separate action, even when they are not reviewed by the court and merged into the divorce decree itself. Stockton v. Stockton, 1956 OK 226 , 299 P.2d 146 ; Elliott v. Dunham, 1942 OK 237 , 130 P.2d 534 ; Eatman v. Eatman, 1975 OK CIV APP 68 , 549 P.2d 389 . In such an action, Wife potentially could recover the cost of the interim care which Husband agreed to provide. Here, however, if the divorce decree is vacated, Wife may recover far more than originally agreed.
¶ 8 Because the majority’s decision is contrary to established precedent and public policy, and provides an unnecessary and inappropriate remedy, I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796159. Public record. Not legal advice.