Peck v. Peck

DRAPEAU, J. pro tem.

In a complaint for annulment of marriage it was alleged that the plaintiff and defendant were married in Yuma, Arizona, and that the defendant refused at all times thereafter to live with or cohabit with the plaintiff as his wife. Answer was filed denying the allegations of refusal to cohabit. The defendant also filed a cross-complaint for divorce alleging cruelty and failure to provide. In the prayer of the cross-complaint was a clause praying for support and maintenance of defendant during the pendency of the action and thereafter. Answer to the cross-complaint was duly filed.

Thereupon defendant filed an amended cross-complaint alleging in addition to the matters above set forth that she and the plaintiff had entered into a property settlement agreement. The property settlement agreement was made a part of the cross-complaint. It provided that the plaintiff pay defendant’s counsel fees and costs in the sum of $115, which

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was agreed to be a full and complete settlement of all claims of defendant upon the plaintiff. Also the amended cross-complaint dropped that clause of the prayer, above referred to, asking for support money.

The cause was called for trial as a default on the amended cross-complaint. Counsel for both plaintiff and defendant appeared and participated therein. There was testimony to support a finding of cruelty, although at best the parties lived together a few days less than five months and one was about as able to support himself as the other. The trial judge refused to be bound by the terms of the property agreement in respect of support money for the defendant, and made a minute order directing the preparation of an interlocutory decree of divorce for the defendant and the payment by plaintiff to her of $50 a month until the further order of the court.

Then the trial court of its own motion and without prior notice to counsel vacated the above-mentioned minute order, and set the case down for trial “on its merits.” Counsel for plaintiff noticed a motion to be heard at the same time, requesting the court to vacate its order awarding alimony. Upon the hearing thus set by the court, both plaintiff and defendant and their counsel appeared, testimony was taken and argument was had. The motion to enter different decree was denied, and the decree awarding defendant $50 per month was ordered to stand. Upon the same date the trial court signed the interlocutory divorce, and award of alimony, from which this appeal is taken.