Tracy v. Tracy

BURKE, P. J.

This is an appeal from an interlocutory decree of divorce but errors laid to the trial court go to the exercise of its discretion in denying plaintiff-appellant’s motion for a new trial.

Plaintiff wife brought an action for divorce and defendant husband filed a cross-complaint seeking like relief. When the matter came on for trial counsel for the parties met with the judge in chambers, after which stipulations were placed of record to give wife 60 per cent of the real property and all household furnishings, the husband to receive 40 per cent, and a 1952 Cadillac automobile. They also agreed on the

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amount of support payments to be provided by defendant. Defendant agreed individually and through counsel to the stipulated property settlement, to custody of the minor children of the parties being awarded to plaintiff, and that he would not introduce evidence on his own behalf on the issue of divorce. Findings of fact were waived. Plaintiff put on her evidence and an interlocutory decree of divorce was entered in her favor. With respect to the property settlement plaintiff was asked the following question by her counsel: “Q. You heard the stipulation entered into between the attorneys for yourself and your husband, and that is satisfactory to you, is that right? A Yes.”

On October 18, 1961, plaintiff filed a notice of substitution of attorneys and concurrently therewith a notice of intention to move the court to vacate and set aside the judgment and to grant a new trial. The asserted grounds for this motion were (1) accident or surprise which ordinary prudence could not have guarded against (Code Civ. Proe., § 657, subd. 3), (2) newly discovered evidence material for the party making the application, which she could not with reasonable diligence have discovered and produced at the trial (Code. Civ. Proe., § 657, subd. 4), and (3) insufficiency of the evidence to justify the decision (Code Civ. Proe., § 657, subd. 6).

The above motion was accompanied by the affidavit of plaintiff made pursuant to section 658, Code of Civil Procedure, in which she stated (1) that subsequent to the trial of this matter she first obtained a statement of defendant’s earnings as a school teacher which consisted of a salary warrant stub showing salary and deductions and dated February 26, 1960; (2) that she first learned that a monthly deduction was made from said salary for a contribution to defendant’s retirement fund and this fact was not disclosed by defendant to her; (3) that this information was not revealed to the trial judge, and her former counsel did not make this information available to the court; (4) that certain information relevant to loan funds received by defendant, known to her former counsel, was not made available to the trial judge; (5) that the former counsel had been requested to obtain all facts pertinent to said loan, had agreed but failed to do so, and (6) “that affiant agreed to the stipulation regarding the division of community property, entered in the minutes at the hearing of September 11, 1961, without due consideration, advice or counsel and purely upon accident and surprise.”