Couser v. Couser

DRAPEAU, J.

Plaintiff and defendant lived together as husband and wife for nearly seven years. They had no children. The husband was granted an uncontested interlocutory decree of divorce from the wife March 18, 1953. The two parties had entered into a property settlement agreement, which was approved by the interlocutory decree. The wife had also quitclaimed the family home to the husband.

[476]

June 11, 1953, the wife filed notice of motion under section 473 of the Code of Civil Procedure, to vacate the interlocutory decree, and to set aside the property agreement and the quitclaim deed. The wife also ■ asked for an allowance for counsel fees and costs.

The motions were submitted to the trial court on affidavits of the two parties and of others, and the testimony of the husband.

Defendant wife appeals from the court’s order denying her motion to set aside her default, the interlocutory decree of divorce, and the property settlement agreement; also from the order dismissing the order to show cause relative to attorney’s fees and costs.

Defendant asserts and argues that her husband was much .older than she was; that he employed skilled legal counsel while she was at all times without independent legal advice; that before she signed the property agreement and the quitclaim deed in her husband’s lawyer’s office her husband promised her she would get half of the family home and its furnishings; that her husband said that any papers she signed “were to protect her because she was a young woman and needed protection.” The husband’s testimony and affidavits controverted all of the wife’s assertions, except that she was without independent legal advice.

In the well considered case of

Elms

v.

Elms,

72 Cal.App.2d 508, at page 513 [154 P.2d 936], the guiding rules to be followed by trial courts in considering motions under section 473 of the Code of Civil Procedure are stated:

“One may not be relieved from his default unless he makes a showing that he has acted in good faith and demonstrates that his excusable neglect was the actual cause of his failure to attend the trial. Neither one’s change of mind nor his inexcusable negligence is ground for vacating a judgment. To warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. (Freeman on Judgments, 5th ed., vol. 1, p. 482;