Kelley v. Kelley

THOMPSON, J.

Robert H. Kelley, respondent, obtained an interlocutory decree of divorce from Dora L. Kelley, appellant, in November 1959 after 20 years of marriage. The decree approved a property settlement agreement which gave the family home and furnishings in Inglewood and certain personal property and bank deposits to Dora as her separate property and gave another parcel of real estate in Inglewood and certain personal property and bank deposits to Robert as his separate property. It also awarded alimony of $25 a week to Dora and ordered Robert to pay $30 a week for the support of a minor daughter and $20 a week for support of a minor son.

Robert rented an apartment in Glendale. From January until June 1960, he and Dora were frequent social companions and on occasions engaged in sexual intercourse. Late in June of that year, Robert suffered a heart attack. Upon his release from the hospital, he returned to what had been the family home in Inglewood. Robert continued to live at the Inglewood residence with Dora except for frequent and sometimes extended periods when his job as a heavy construction worker took him out of town. At all times material, Robert paid $70 a week to Dora and continued to make payments in that sum after the children had married and moved from the Inglewood home.

In May 1967, Robert went to Sacramento on a construction project. Dora visited him in October. A dispute arose and the

[381]

parties signed a purported agreement prepared by Robert on hotel stationery by which Robert agreed to pay $5,000 to Dora which she agreed to take in lieu o£ further alimony. On October 30, 1967, Dora filed a new complaint for divorce. On November 17, Robert countered with the motion for final judgment of divorce

nunc pro tunc

which is now before us.

Robert’s motion was supported by his declaration that there had not been an “unconditional reconciliation” of the parties. The declaration stated that Robert and Dora had resumed cohabitation to provide joint parental control over their children and upon Dora’s promise not to associate with “other males.” It stated also that Dora had not kept her promise. Declarations of Dora and eight other witnesses submitted in opposition to the motion declared that there had been an ‘1 unconditional” reconciliation of the parties. Most facts as stated in the declarations were amplified by testimony of Robert and Dora. That testimony included evidence of the existence of a joint bank account of the parties and of their having filed joint income tax returns in some years.