Kapple v. Kapple

ASHBURN, J.

Defendant appeals from an order denying a motion to vacate his default and the interlocutory decree of divorce entered thereon in favor of the plaintiff wife.

[788]

Appellant complains principally of the award of the real property to the wife. The affidavits upon the motion are in conflict and appellant’s counsel devotes himself to an argument as to the effect of that evidence.

It is of course presumed that the trial court resolved any conflicts in favor of the prevailing party

(Warren

v.

Warren,

120 Cal.App.2d 396, 400 [261 P.2d 309];

Baratti

v.

Baratti,

109 Cal.App.2d 917, 922 [242 P.2d 22]), and the order will not be set aside in the face of such conflict and the ruling thereon.

(Warren

v.

Warren, supra; Elms

v.

Elms,

72 Cal.App.2d 508, 513 [164 P.2d 936].)

Viewing the evidence in the light most favorable to respondent it appears that plaintiff, after 29 years of marriage to defendant, had been talking about a divorce for a year and a half before the instant action was filed in November, 1954. In the spring of 1953 her attorney, Mr. Claude L. Welch, had prepared a complaint and discussed it with defendant who said he had mistreated his wife but would do so no more, that he wanted to effect a reconciliation and if he could not do so he would not contest the suit. Before the present complaint was filed defendant had been convicted of felony drunk driving, and had served a year in jail; on his release he sought a reconciliation and plaintiff decided to give him a “chance to make good.” But in October, 1954, plaintiff advised her attorney that it was impossible for her to continue the marriage and instructed him to proceed with a divorce action; this was done on November 5, 1954, and defendant was served on that date with summons, complaint and order to show cause. The order related, of course, to support money, attorney fees, etc. It was returnable on November 15th. A few days before the return date, defendant told Mr. Welch he believed he could patch up everything with plaintiff if he had a little time; he asked for 60 more days, and that the hearing on the order to show cause not proceed. Mr. Welch telephoned plaintiff who said she would be willing to have the hearing continued if it would not prejudice any of her rights, but that she was leaving the entire matter to the attorney. Defendant then told him if he could have 60 days he would ask nothing more, and that if he could not convince plaintiff that he had reformed he would give her everything and ask for no part of the property for himself, as he knew he had given her good grounds for divorce; he was emphatic in his determination to make good or to give plaintiff everything. On November 15, 1954, Mr. Welch and defendant appeared