ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION II

JOSEPH FORTNER

APPELLANT

V.

MEREDITH FORTNER

APPELLEE

CA00-01008

JUNE 20, 2001

APPEAL FROM THE POINSETT COUNTY CHANCERY COURT

[NO. E1998-259]

HONORABLE GRAHAM PARTLOW,

CHANCERY JUDGE

AFFIRMED

This is an appeal from the Poinsett County Chancery Court's denial of appellant's motion to set aside a decree of divorce due to fraud. Appellant asserts two points for reversal: (1) the chancery court abused its discretion in assessing the quantum of proof presented on the issue of fraud in order to set aside a divorce decree, and (2) the court erred by not allowing appellant to call appellee's attorney as a witness to establish whether paternity information was withheld by appellee or her attorney, and that the court failed to consider the duty owed by an attorney to a party who is not legally represented in a no-contest divorce action. We find no error and affirm.

Appellant, Joseph Fortner, and appellee, Meredith Fortner, were married on December 4, 1995. Appellee filed a complaint for divorce on August 20, 1998. Thecomplaint alleged that two children were born of the marriage. Both children were identified with the surname of Fortner. The correct dates of birth were provided. The oldest child's date of birth was prior to the marriage of the parties and listed as February 23, 1995. Appellant executed a Waiver of Service of Summons, Notice and Entry of Appearance on October 12, 1998, and a Decree of Divorce was filed of record on October 14, 1998. The decree stated that two (2) children were born of the marriage and ordered the appellant to pay child support and medical expenses for both children.

On April 22, 1999, appellant filed a petition for contempt and raised the issue of paternity. On September 23, 1999, appellant filed an amended petition alleging that appellee and her attorney perpetrated fraud in obtaining the decree by stating that two children were born of the marriage. He sought paternity testing as to both children.

At the hearing on his petition, appellant testified that he was presented the waiver of service and entry of appearance which stated that he agreed that appellee was the fit and proper person for custody of the two minor children, and agreed upon the payment of child support and medical expenses. He testified that he read and signed the waiver. Appellant also signed the decree that identified the two children as his, set child support and provided for the payment of medical expenses for the children. However, appellant testified that he simply did not understand that he was acknowledging that both children were his.

Chancery cases are reviewed de novo on appeal; however, a chancellor's findings of fact will not be reversed unless clearly erroneous. Taylor v. Eagle Ridge Developers, LLC,

71 Ark. App. 309, 29 S.W.3d 767 (2000). Therefore the question we must address is whether the chancellor's findings of fact regarding appellant's allegations of fraud are clearly erroneous.

In First National Bank v. Higginbotham Funeral Serv., Inc., 36 Ark. App. 65, 68-69, 818 S.W.2d 583, 585 (1991), we discussed the type of fraud necessary to set aside a decree under Rule 60(c)(4):

Rule 60(c)(4) of the Arkansas Rules of Civil Procedure authorizes the trial court to modify or vacate an order, at any time, for fraud practiced by the successful party in obtaining the judgment. The Rule thus permits vacation or modification of an order after ninety days only in cases of fraud practiced upon the court in obtaining the judgment. See Smart v. Biggs, 26 Ark.App. 141, 760 S.W.2d 882 (1988). The fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950). It is not sufficient to show that the court reached its conclusion upon false or incompetent evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id. ... The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, see Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), and the charge of fraud must be sustained by clear, strong, and satisfactory proof. Ark. State Hwy. Comm'n. v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280 (1968) .

The case at bar is analogous to Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950). There, the chancellor vacated an order contained in the parties' divorce decree requiring the appellee to pay child support after finding that the parties had not legally adopted a minor child as the appellant had contended at the time of divorce. The supreme court, however, reversed the chancellor's order, holding that the fraud for which a decree may be canceled must consist of fraud in the procurement of the decree and not merely inthe cause of action. The supreme court further held that, although the petition to modify the decree did not charge that the appellant fraudulently misrepresented to the appellee or the court that the child had been adopted, that even if she had knowingly and falsely testified at the original hearing, such action would have amounted to intrinsic fraud and did not involve the extrinsic or collateral fraud required to modify or vacate the original decree. Id. at 236, 229 S.W.2d at 237.1

At the hearing before the chancellor in this case, appellant argued that appellee obtained the decree through fraud practiced on appellant. The chancellor, however, found that appellee did not obtain the decree by fraud. Appellant presented no testimony other than his own and produced no witnesses to corroborate his claim that he had been fraudulently induced to sign the waiver and entry of appearance, or to sign the divorce decree itself. The complaint, decree, and waiver all referred to "children" as opposed to one child.

The chancellor found that the oldest child's surname was Cheek, and that although she may have been inadvertently named in the divorce papers as Fortner, that the parties had been married for three years and that appellant certainly knew the child's surname. In addition, the court noted that at the time that appellant and appellee met, the child was approximately six or seven months of age and that appellant was well aware of that fact. The chancellor further stated that it was his belief that appellant read all of the documentsand was well aware of the fact that he was declaring himself to be the father of both children. The court found no fraud in the procurement of appellant's signatures and refused to set aside the decree. At the conclusion of the hearing, the chancellor found there was insufficient evidence to set aside the decree on the basis of fraud. We hold that the chancellor's finding was not clearly erroneous.

Similarly, we find no merit to appellant's second point. Appellant explains this issue in his brief as follows:

To have not allowed Mr. Hunter [appellee's attorney] to testify stymied Appellant's ability to elicit testimony that would have gone to the very heart of the issue in this case, that being fraud on information withheld (not explained) from the Appellant on his rights about his two children and fraud on the Court about information presented to the Court that was absolutely not true.

First, we note that appellee's attorney had no duty to explain to appellant his legal rights concerning the children or any other legal matter related to the divorce. In fact, Rule 1.7 of the Model Rules of Professional Conduct regarding conflict of interest prohibits representation of opposing parties in litigation and would prohibit appellee's attorney from providing legal advice to appellant. The fact that appellant was not actively opposing the divorce proceeding in no way lessens the adversarial nature of the litigation itself. Appellant testified that appellee's attorney did not speak to him much and never explained that he had no legal duty to pay child support for the oldest child. Appellant further testified that he was aware of his right to seek his own legal counsel.

It is possible that an attorney's actions in advising the adverse party in an uncontested divorce may rise to the level of fraud. Cf. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447(1986). However, in the circumstances presented in the case at bar, neither the chancellor's finding that appellant had failed to establish fraud in the procurement of the decree, nor his refusal to require appellee's attorney to testify was clearly erroneous.

Accordingly, we affirm.

Bird and Roaf, JJ., agree.

1 Rule 60(c)(4) was amended on January 27, 2000, to allow a judgement, decree, or order to be modified or set aside for intrinsic as well as extrinsic fraud.