John F. Daugharty and Sarah R. Daugharty - Page 15

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                  Because the principles of law enunciated in Yohanan [v.                                
                  DeClaire, 421 So.2d 551 (Fla. App. 4th Dist. 1982)] and                                
                  Brown [v. Brown, 432 So.2d 704 (Fla. App. 3d Dist.                                     
                  1983)], have been disapproved by our Supreme Court, we                                 
                  would be without authority to affirm the judgment in                                   
                  this case even if we believed that appellee's complaint                                
                  properly alleged the perpetration by the husband of an                                 
                  extrinsic fraud.  Here, as in DeClaire v. Yohanan, the                                 
                  allegedly false financial affidavit submitted by the                                   
                  husband was before the court which dissolved the                                       
                  marriage of the parties, and the husband's financial                                   
                  condition was or could have been made an issue in that                                 
                  case.  Accordingly, the accuracy of the financial                                      
                  affidavit could have been questioned in those                                          
                  proceedings.  The appellee had an opportunity to                                       
                  question the accuracy of the affidavit  * * *                                          
                  *     *     *     *    *    *    *                                                     
                  Here, as in DeClaire, the fraud perpetrated by                                         
                  appellant in connection with the filing of his                                         
                  financial affidavit, if indeed the affidavit was false,                                
                  was intrinsic fraud and did not constitute fraud upon                                  
                  the court.                                                                             
                  we conclude that this case must be remanded to the                                     
                  trial court with instructions to dismiss the wife's                                    
                  complaint with leave to file an amended complaint                                      
                  should the wife feel that she can properly and in good                                 
                  faith allege misconduct by attorney Harden or collusion                                
                  between Harden and her husband or her husband's                                        
                  attorney which prevented her from presenting her case                                  
                  in the divorce action.  Conduct by an attorney which                                   
                  amounts to connivance at the defeat of his own client,                                 
                  or conduct by a party which prevents an opposing party                                 
                  from fairly presenting his or her claim or defenses                                    
                  does constitute fraud on the court.  * * *  [Id. at                                    
                  1273-1274].                                                                            

                  On remand, after Faye had filed an amended complaint, the                              
            Fourth Judicial Circuit held a 3-day trial.  In its judgment                                 

                  4(...continued)                                                                        
            1984, Order for Temporary Alimony.                                                           




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