Cory v. Cory

ADAMS, P. J.

In this action an interlocutory decree of divorce was made and entered on April 13, 1943, in favor of

[310]

Kathleen B. Cory, plaintiff, which decree also awarded the custody of the two small children of the parties to plaintiff. On or about August 5, 1944, on motion of defendant, said interlocutory decree was modified to provide that defendant have the care, custody and control of the boy child during the school months of each year; that plaintiff have the custody and control of the girl child until said child reached the age of six years, but that thereafter defendant was to have her custody and control during the school months.

Plaintiff appealed from said order modifying the interlocutory decree, and this court, on August 18, 1945, reversed said order

(Cory

v.

Cory,

70 Cal.App.2d 563 [161 P.2d 385]), and its decision has now become final.

While the aforesaid appeal was pending in this court, defendant, on or about February 23, 1945, filed in the trial court an affidavit in which he alleged, among other things, that “no motion to set aside or annul the said interlocutory decree, nor any suit brought therefor, is pending and undetermined, and that no appeal from the said decree has been taken nor pending.”

Upon this affidavit the trial court, on March 2, 1945, made and entered a final decree of divorce which “ordered and adjudged that all the terms of said interlocutory judgment as it now exists are incorporated herein by reference the same as if herein set forth in full. ’ ’ From said final decree plaintiff has filed this appeal, making two contentions, one, that entry of the final decree while the appeal from the order amending the interlocutory decree was pending was improper and the decree so entered was void and should be set aside; and, two, that this court having reversed the order modifying the interlocutory decree, it should follow that the final decree should likewise be so reversed.

It was stipulated between the parties to this appeal that the records and briefs on the appeal from the order modifying the interlocutory decree might be considered as records and briefs on this appeal. No additional brief has been filed by respondent, but in a letter to this court counsel stated that it was stipulated between counsel that