
    No. 820
    POTTS v. POTTS
    Ohio Appeals, 2d Dist., Franklin County
    Decided October 4, 1923
    DIVORCE.
    Trial court has power to vacate or modify divorce decree during same term of court upon motion— Remarriage does not prevent court from setting aside decree for fraud.
    Attorneys — M. W. Bradshaw, for plaintiff; Blair & Blair, for defendant.
   ALLREAD, J.

Epitomized Opinion

Mabel Potts brought an action for divorce in Franklin county. She made an affidavit to the effect that she did no-., know the residence of her husband, and upon this affidavit she made service by publication. Shortly after a divorce was granted to plaintiff, her husband not appearing, she remarried. During the same term of court her husband filed a motion to vacate this decree. At the hearing of this motion evidence was introduced which showed that the husband had never changed his place of abode, and had resided at all times at the same place where they had lived together for years. It also was disclosed that plaintiff visited defendant shortly after the affidavit was made. The husband never received notice of the pendency of the divorce action. The trial court set aside the divorce. Plaintiff prosecuted error. In sustaining the lower court, the Court of Appeals held:

1. A trial court in a divorce case has jurisdiction, upon motion filed during the judgment term, to vacate and set aside a decree of divorce in the reasonable exercise of its discretion, as where there is fraud.

2. The fact of remarriage is not a bar to jurisdiction of the court to vacate or modify a judgment of divorce during the term, especially where the question is presented by the party guilty of the fraud on the court.  