Nelson v. Nelson

California Supreme Court Sep 21, 1936 No. S. F. No. 15557Published

Before: Waste

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Holding. The court held that a final divorce decree obtained through fraud following a reconciliation between the parties was properly vacated, and that the trial court retained jurisdiction to award support and medical expenses for the wife and child.

Issues

Whether the evidence supported the trial court's finding of reconciliation and condonation sufficient to vacate a final divorce decree.
Whether the trial court had jurisdiction to award counsel fees and support while the motion to vacate the decree was pending.
Whether the trial court had jurisdiction to award support for a child born after the reconciliation of the parties.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The court below was, therefore, acting well within its authority in vacating and setting aside the final decree which had been fraudulently procured and its judgment must be affirmed.”

“At the time of the application for and the granting of these awards, the parties retained their status as husband and wife, the final decree had been set aside, and, in our opinion, the cause was “pending” within the meaning of section 137”

WASTE, C. J.

Plaintiff procured an interlocutory decree of divorce from the defendant on March 4, 1932, on the ground of extreme cruelty. On January 8, 1934, the defendant, without plaintiff's knowledge, procured the entry of the final decree. In support of his application therefor he filed the usual and necessary affidavit reciting that there had been no condonation or reconciliation subsequent to the entry of the interlocutory decree. Upon her discovery of the entry of the final decree and approximately five months after its entry, the plaintiff filed her petition to have the final decree of divorce set aside on the ground that the parties had become reconciled and had cohabited and lived together as husband and wife in the interim between the entry of the two decrees. After hearing before the court, sitting without a jury, it was found, upon conflicting evidence, that the defendant had “fraudulently and contemptuously concealed from the court the fact that the plaintiff and the defendant had, since the granting of said interlocutory decree . . . become reconciled and had lived and cohabited together as husband and wife”, and that the defendant had “resorted to fraud and misrepresentation to secretly secure said final decree of divorce without the knowledge of the plaintiff after a legitimate

[452]

reconciliation had been effected between the plaintiff and said defendant”. The court thereupon entered its judgment on October 26, 1934, vacating and setting aside the final decree of divorce and awarding plaintiff costs and counsel fees.

We cannot accept the defendant’s contention upon this appeal from the judgment that the evidence fails to disclose a condonation and reconciliation within the meaning of sections 111, 115 and 116 of the Civil Code and the authorities construing and applying the same. It is not our inclination to discuss or attempt to reconcile the many cases wherein the cited sections were involved. Section 116,

supra,

provides, in effect, that condonation is established when there is a knowledge on the part of the condoner of the facts constituting the cause of divorce, when there is a reconciliation and remission of the offense by the injured party, and when there is restoration of the offending party to all marital rights.

Nelson v. Nelson

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WASTE, C. J.

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