Small v. Small

WOOD (Parker), J.

Plaintiff appeals from an order denying his motion for a final judgment of divorce.

In 1949 plaintiff commenced an action for divorce. Defendant filed an answer to the complaint, and also filed a cross-complaint for separate maintenance. On January 31, 1950, after a trial, an interlocutory decree of divorce was granted to plaintiff; defendant was awarded custody of the two minor sons, 18 and 20 years of age; plaintiff was ordered to pay to defendant $120 a month for the support of said minors; and it was ordered further that a property settlement agreement theretofore entered into between the parties “be not set aside.” In August, 1950, plaintiff returned to defendant’s home and resided there until September, 1952, when he moved to another dwelling place. On October 20, 1952 (after one son had become 21 years of age), defendant ' made an application for modification of the order for support of the other son. On November 17, 1952, pursuant to stipulation, the court modified said order by directing plaintiff to pay $100 a month, during the school term, for support of the minor son. On December 4, 1952, plaintiff filed a notice of motion for a final judgment of divorce. He also filed his affidavit in support of the motion. On December 12, 1952, defendant filed a notice of motion to dismiss the divorce action on the ground that the parties had become reconciled. She also filed her affidavit and four other affidavits in support

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of her motion. Thereafter plaintiff filed his affidavit in opposition to her motion to dismiss the action, and defendant filed her affidavit in opposition to his motion for final judgment of divorce. The motions were referred to a court commissioner for hearing and for findings and recommendations thereon. The motions were submitted upon the affidavits on file and the arguments of counsel.

The findings of the commissioner were, in part, that during August, 1950, the parties became reconciled; that the reconciliation was complete in every respect; that the parties occupied the same bedroom and cohabited; that the reconciliation was entered into for permanency and 'there was mutual condonation of past offenses by both parties. The recommendations were: “Motion for final judgment of

divorce is denied. Motion to dismiss the action herein is denied. There was a bonafide reconciliation and condonation of past offenses followed by the restoration of the plaintiff to all marital rights, with the intention that thenceforth the plaintiff and the defendant should live together as husband and wife and they did so live together as husband and wife from August 1950 to Sept. 1952.” The court made its order, based upon said findings and recommendations, that plaintiff’s motion for final judgment of divorce is denied, and defendant’s motion to dismiss the action is denied.