Reeh v. Reeh

SHINN, J.

This is an appeal by plaintiff from an order made upon the court’s own motion, vacating an interlocutory decree of divorce which had been rendered in favor of plaintiff upon default of defendant to appear.

Although defendant had moved for relief upon other grounds, the decree was vacated upon the ground that it was void by reason of the alleged failure of plaintiff and of the court to comply with the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended (54 U. S. Stats. 1178; 56 U. S. Stats. 769; 50 U.S.C.A.App. §§ 501-585). The complaint was filed January 5, 1943, praying for a divorce, custody of a daughter fifteen years of age, and that the household furniture be awarded to plaintiff. Plaintiff sought support for the daughter but not for herself. Summons was served on defendant January 7, 1943, in Los Angeles County. On January 22, plaintiff made affidavit that defendant was serving in the Ordnance Department of the Army, stationed at Pomona, California, and on the same day notice was served on defendant of plaintiff’s application for appointment of an attorney to represent defendant in the action. On February 5th the court appointed an attorney with offices at Pomona to represent defendant, and on the same day defendant was served with notice of such appointment. The attorney so appointed conferred with defendant over the telephone, was instructed by defendant not to make any appearance in his behalf, and was later instructed by letter not to appear in the trial of the action and he notified the court that in view of such instructions he would not assume the responsibility of defending the action. The case was tried as a default on

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March. 9th, plaintiff was awarded a decree, custody of the daughter, and the household furniture, and defendant, was ordered to pay $40 a month for the daughter’s support. By order entered in the minutes the clerk was directed to enter the decree. Defendant employed an attorney and on July 26, 1943, gave notice of a motion to vacate the default and the decree and for permission to answer. The grounds of the motion were that plaintiff had committed a fraud upon the court by concealing the fact that she had continued her marital relations with defendant after the filing of the complaint, that defendant was in the military service and that his failure to answer was the result of excusable neglect, mistake, inadvertence and surprise. The motion was based in part upon an affidavit of defendant. Plaintiff filed a counteraffidavit. The motion was denied August 10, 1943, and no appeal was taken from the order. A similar motion was made by the defendant in February, 1944. The grounds of this motion were the same as those of the first motion and the affidavits of defendant and several others were filed in support thereof. No counteraffidavit was filed by plaintiff. The motion was heard on March 20, 1944, and an order was made reading in part as follows: “. . . the court finds: That the defendant is now and at all times since the filing of said action has been in the armed forces of the United States of America and that said default and said default interlocutory decree of divorce were entered without the filing of a military affidavit and/or the waiver by the defendant and or any attorney on his behalf of the rights and privileges of said defendant under the Soldiers’ and Sailors’ Relief Act of 1940 and Amendments of 1942, and that said orders are void and the court, therefore, grants said motion, and upon its own motion makes the following order: It is Hereby Ordered, Adjudged and Decreed that the default which was entered against said defendant Paul Reeh under date of Feb. 17, 1943, and said interlocutory decree of divorce which was entered against said defendant on or about March 9, 1943, are hereby vacated and set aside and the proposed answer of said defendant heretofore filed is hereby made a part of said file, the same having been heretofore filed by defendant in answer to plaintiff’s said complaint. It is Further Ordered that defendant Paul Reeh shall pay to plaintiff Dorothy L. Reeh, for the support of plaintiff and Gloria Reeh, minor daughter of the parties