Lukasik v. Lukasik

VAN DYKE, J.

This is an appeal from a default judgment of the Superior Court of Merced County awarding an interlocutory decree of divorce to respondent, Dolores Lukasik, and

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also from an order of the court denying appellant’s motion to set aside the judgment and default and permit appellant to file an answer and cross-complaint. The divorce action was commenced on August 21, 1950. The complaint was amended October 8th following to substitute specific allegations of cruelty for the general allegations contained in the complaint as filed. The relief sought by respondent’s pleading was a divorce, based upon extreme cruelty, custody of two minor male children then 6 and 5 years old, respectively, and a division of the community property belonging to the parties. The appellant did not appear in the action although served shortly after the filing of the complaint, and on February 8, 1951, his default was entered. On April 12,1951, respondent presented her evidence in support of her allegations to the trial court and on April 20th following an interlocutory decree of divorce was entered. The community real property of the parties was divided equally between them. Respondent received, in addition, the furniture and furnishings in the family residence. The decree further divided equally the farm machinery, equipment, and all of the other personal property. Custody of the two minor children was awarded to respondent, Dolores, with .reasonable right of visitation accorded to appellant. He was also directed to pay respondent $100 per month for her support and an additional $100 per month for the support of the minor children. He was further ordered to pay an additional sum of $100 to respondent’s attorney for his services in the action.

Thereafter, on May 3d, appellant served and filed a notice of motion to set aside the judgment. Affidavits in support of and in opposition to the motion were filed by the respective parties and the matter submitted to the court after oral argument. The court denied the motion, declaring in a memorandum opinion which has been brought up that appellant had been guilty of inexcusable neglect in failing to appear.

Upon an appeal from an order refusing to set aside a judgment by default all presumptions are in favor of the order of the trial court.