Watson v. State of Oregon

694 P.2d 560, 71 Or. App. 734

• Court: Court of Appeals of Oregon
• Decided: January 23, 1985
• Docket: 16-83-02462; CA A29628
• Status: Published

Opinions

WARREN, J.

Plaintiff sued to vacate a judgment in which he was adjudicated to be the father of defendant Stadler’s child and ordered to pay child support. The trial court dismissed the complaint, on defendants’ motion, for failure to state ultimate facts sufficient to constitute a claim. We affirm.

Defendants petitioned the court in 1980 to establish that plaintiff is the father of the child. During the pendency of that proceeding, defendant Stadler testified in a deposition that plaintiff is the father of her child and that she had not had sexual relations with any one other than plaintiff during the probable time of conception. Plaintiff did not seek blood tests during that proceeding, although he could have required the mother and child to submit to the tests under ORS 109.252. Instead of litigating the issue of his paternity, he stipulated that he is the father. The court entered a judgment. Plaintiff did not appeal.

In 1982, plaintiff experienced doubts as to his paternity and arranged to have blood tests performed on himself, the child and the mother. The results of those tests exclude plaintiff as the biological father. In his complaint in this proceeding, plaintiff alleged that he “was prevented from impeaching the paternity and the judgment of paternity by the fraud, accident or the act of Defendant Faith Darlene Stadler, unmixed with negligence or fraud on his own part.”

Considering plaintiffs complaint in its most favorable light, we construe it as a prayer to vacate a judgment procured by fraud.¹ Because of a strong policy favoring the finality of judgments, courts will vacate a judgment on the ground of fraud only in exceptional cases.

“ ‘A court of equity will not lend its aid unless the party claiming its assistance can impeach the judgment by facts or on grounds of which he could not have availed himself at law, or was prevented from doing it by fraud or accident or the act of the opposite party, unmixed with negligence or fraud on his own part. When a party has once an opportunity of being heard, and neglects to do so, he must abide the consequences of his neglect. A court of equity can not relieve him, though the judgment is manifestly wrong.’ ” Mattoon v. Cole, 172 Or 664, 670, 143 P2d 679 (1943), quoting 2 Freeman on Judgments, Second Edition, § 486.

In order for plaintiff to show that he was prevented from impeaching the judgment by defendant’s fraud, he must plead and prove fraud extrinsic to the proceedings; an allegation of perjury in the course of the proceedings is insufficient.

“* * * It is not every species of fraud, however, that vitiates a judgment. It is fraudulent to give perjured testimony and such evidence may result in a judgment but, according to the great weight of authority, equity will not interfere for that reason alone, since the unsuccessful party had his opportunity to refute the false testimony. If the rule were otherwise, there would be no end to litigation. * * *

ÍÍ* Jjc i}c 4c *

“It is only when the fraud is extrinsic or collateral to the matter actually tried that equity will enjoin enforcement of the judgment * * *.” O.-W. R. & N. Co. v. Reid, 155 Or 602, 609-10, 65 P2d 664 (1937).

See also Slate Const. Co. v. Pac. Gen. Con., Inc., 226 Or 145, 151, 359 P2d 530 (1961).

United States v. Throckmorton, 98 US 61, 25 L Ed 93 (1878), was a suit to set aside a decree allegedly obtained by the use of a fraudulent document and perjured testimony. In affirming the circuit court’s sustaining a demurrer to the bill, the Supreme Court described the types of extrinsic fraud which may support the setting aside of a judgment.

“* * * Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. * * *

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“On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed * * *” 98 US at 65-66.

It is clear that the fraud alleged in this case, perjured deposition testimony, was intrinsic to the proceeding. Intrinsic fraud may not provide the basis for setting aside a judgment, and it does not matter that the judgment was entered pursuant to a stipulation and not after a trial on the merits. Judgments entered after default or on the parties’ stipulation have the same solemn character as judgments entered after trial. Although we have not found any Oregon cases in which a stipulated judgment was attacked for fraud, a similar case was decided by the highest court of New York.

Crouse v. McVickar, 207 NY 213, 100 NE 697 (1912), was a suit to set aside a decree in a probate proceeding. The executors of the will had brought an action to determine whether a person was a legitimate child of the deceased and entitled to share in the estate. Before trial of the action, the parties entered into a stipulation that the person should receive one-half of the residuary estate, and judgment was entered dividing the estate as stipulated. Subsequently, suit was filed to set aside the judgment on the ground that the claim was fraudulent and that plaintiff had relied on the false statements in entering into the stipulation. The New York Court of Appeals held that the complaint alleged intrinsic fraud and did not state facts sufficient to constitute a basis to set the judgment aside.

“The fact that the decree now sought to be vacated rests on stipulation does not differentiate it in principle from one where the judgment was rendered after hearing evidence. The stipulation acted as a substitute for evidence. Each party being afraid of the effect of the evidence of the adverse party stipulated that the adversary’s claim should prevail to the extent of one-half. No fraud is charged except in statements made as to the issue itself. If perjury in that respect made on the witness stand and inducing a court or jury to render an erroneous decision would not support an action to set aside the judgment, it is difficult to see why it should be of more moment because it frightened the parties into a compromise.” 207 NY at 219.

We hold that the circuit court did not err in dismissing plaintiffs complaint for failure to state a claim for relief. The fraud of which plaintiff complains, perjured deposition testimony, was intrinsic to the proceeding below, because it concerned the very issue in dispute, and cannot provide the basis for setting aside the judgment. Although plaintiff may have been induced by the mother’s deposition to stipulate to a judgment, he was not prevented from disputing her testimony and attempting to disprove his paternity. The strong policy favoring the finality of litigation dissuades us from allowing plaintiff to upset a judgment to which he consented without seeking to present evidence on the disputed issue.

Affirmed.

1 For the first time plaintiff argues in his reply brief that a judgment which is entered pursuant to a stipulation may be vacated on any ground which would justify the rescission of a contract, citing State ex rel Adult & Family Ser. v. Hansen, 54 Or App 47, 634 P2d 256 (1981). Because plaintiff did not raise this contention in either the circuit court or his opening brief in this court, we could decline to consider it. Espinosa v. Southern Pacific Trans., 50 Or App 561, 573 n 15, 624 P2d 162, affirmed 291 Or 853, 635 P2d 638 (1981). Nevertheless, we find his argument to be without merit. Plaintiff does not point to any consideration which supported his stipulating to a judgment of paternity, nor can we find any. Accordingly, we do not view this judgment as being in the nature of a contract.