Brochier v. Brochier

CARTER, J.

This is an appeal from an order denying a motion to vacate certain orders made by the trial court after the entry of an interlocutory decree of divorce. On May 17, 1937, an interlocutory decree of divorce was entered in favor of plaintiff on the grounds of adultery and extreme cruelty. That decree has never been modified and no appeal having been taken therefrom it is now final. No provision for alimony was made therein. It provided for a division of the community property of the plaintiff and defendant, in part as follows:

“It is . . . decreed that plaintiff . . . does ... by these presents have and recover all property of the community of whatsoever kind or nature and wheresoever located, whether described in the pleadings or not, as her sole and separate estate with the exception of the following property which is hereby . . . decreed to be community, to-wit: (1) The beer parlor . . . (2) One Plymouth automobile ... (3) And one Metropolitan Life Insurance Policy ...” The decree awarded the above particularly described excepted property to defendant. It was also decreed that plaintiff owned at the time of her marriage as her separate property $2,000 in cash, a Dodge sedan, certain described real property and “Barber shop equipment.” Defendant was ordered to refrain from molesting, talking to, harrassing, etc., plaintiff. Finally the decree provided:

“IT IS . . . DECREED, that all the rest of the property described in the said pleadings, together with all other property, wheresoever found or to be found, situated or located, in which the defendant claims any interest, either as his separate estate or as community property, is hereby awarded to the plaintiff, as her sole and separate property and estate. ’ ’ Plaintiff in her complaint claimed as her separate property, among other things, “a beauty parlor establishment with equipment therein”. Thereafter, a satisfaction of judgment dated July 1, 1937, and executed and acknowledged by plaintiff’s attorney, was filed with the clerk of the trial court on July 2, 1937, and entered on July 6, 1937. It provided, in part:

' “The judgment herein having been paid, full satisfaction is hereby acknowledged of said Judgment entered ... (de

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scribing it) ... and the Clerk is hereby authorized and directed to enter full satisfaction of record in said action.” On October 18, 1937, the court issued an order directing defendant to show cause why he should not be punished for contempt for violation of said decree, based upon plaintiff’s affidavit of harrassment by defendant and that defendant had collected the sum of $66.50 on an appeal bond in a small claims court action, which money plaintiff claimed was awarded to her by the decree. By minute order entered on November 5, 1937, the court adjudged defendant guilty of contempt for harrassment of plaintiff, and at the end thereof stated “Defendant is $66.50 in arrears. Defendant is ordered to pay plaintiff $5.00 per month on arrearage, commencing November 15, 1937”. On November 12, 1937, the court made an ezc