Warren v. Warren

California Court of Appeal Sep 28, 1953 No. Civ. 19452Published

Before: Fox

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Holding. The court held that a default judgment in a divorce action cannot be challenged on appeal for insufficiency of evidence, and that the trial court did not abuse its discretion in denying a motion to vacate the default. However, the court modified the judgment to strike unauthorized orders regarding the defendant's eviction and a restraining order.

Issues

Whether the sufficiency of evidence can be reviewed on an appeal from a default judgment.
Whether the trial court abused its discretion in denying the motion to vacate the default judgment.
Whether the trial court exceeded its authority by including orders in the judgment not requested in the complaint.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“On an appeal from the judgment rendered on default a review of the sufficiency of the evidence is not available.”

“It is elementary that such an order will not be reversed in the absence of a clear showing of an abuse of discretion by the trial court.”

“These unauthorized orders, however, do not require a reversal of the judgment. The problem can be adequately met by striking them from the decree.”

FOX, J.

Defendant wife appeals from an interlocutory judgment of divorce granted to plaintiff after a default hearing, and from an order denying her motion to vacate said judgment.

In his complaint for a divorce on the grounds of extreme cruelty, filed on May 22, 1952, plaintiff alleged the existence of community property consisting of household furniture and furnishings and a designated piece of real property. In addition to asking that a divorce be granted and costs of the suit awarded him, plaintiff prayed “For an equitable division of the community property” as well as “For such other and further relief as to the court may seem just and equitable.” Defendant’s default was entered on June 13,1952. The matter was heard on July 1,1952, resulting in an interlocutory decree of divorce for plaintiff. The judgment also awarded all of the claimed community property (the house and its furniture) to plaintiff, ordered defendant to move out of the residence forthwith, and restrained defendant from molesting plaintiff.

On July 15, 1952, defendant made a motion to vacate the interlocutory judgment and petitioned to file her appended answer and cross-complaint. These papers were prepared by her former attorney. The notice of motion, which failed to state any grounds on which it was based, was submitted upon supporting affidavits and the files and records of the case. It may also be noted that the motion contained no request that the default be set aside, although this may be implied from the petition to file a proposed answer and cross-

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complaint. The matter was heard upon defendant’s affidavit and proposed answer and cross-complaint, and upon the counteraffidavits of plaintiff's counsel and the latter’s secretary, Ruby Cassiday. On July 30, 1952, the court denied defendant’s motion to set aside and vacate the default judgment and for leave to file an answer and cross-complaint. Defendant appeals from this order, and from the interlocutory judgment.

Defendant attacks the judgment on the ground that the evidence is insufficient to support it. Since this is a default judgment that question may not be raised on appeal. In

Lukasik

Warren v. Warren

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FOX, J.

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