Necessary v. Necessary

JEFFERSON, J.

This is an appeal from an order entered in a divorce action granting plaintiff’s motion to set aside her default, the entry of default and the interlocutory judgment.

On January 13, 1960, plaintiff filed a complaint for divorce on the grounds of extreme cruelty and infliction of grievous mental suffering. Following filing of the complaint, the parties negotiated through their attorneys with respect to a property settlement. It was contemplated that the action would be heard as a default matter and that custody of the minor children would be awarded to plaintiff. During the interim the children remained with plaintiff, their mother, and were visited by defendant in the family home.

On May 14, 1960, defendant, accompanied by three other men, entered the family residence and found plaintiff in a compromising situation. Four days later defendant filed his answer and cross-complaint for divorce. This was four months after plaintiff’s complaint had been filed and during which time no default of defendant had been entered.

After the incident of May 14, 1960, plaintiff was advised by her attorney there was little hope for her to secure a fair division of the community property by settlement. He said that he was disgusted with her ease and that she would have to work things out for herself. Defendant told plaintiff he

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was going to get all the property and obtain custody of the children, and if she did not agree to such an arrangement he would and could prevent her even from visiting the children.

Plaintiff prevailed upon her attorney to enter into a property settlement by which she was to receive one dollar per month for support and $4,500 of the community property which was valued at approximately $40,000. This settlement is in contrast to their previous negotiations under which defendant had offered support in the amount of $375 per month and $17,000 of community property and plaintiff had offered to accept $450 per month and $20,000 representing one-half of the community property. By stipulation plaintiff agreed to withdraw her complaint and have the matter heard on defendant’s cross-complaint whereby custody of the minor children would be awarded to defendant. On October 24, 1960, default was entered, and on December 8, 1960, the interlocutory decree was granted.