Cowan v. Cowan

California Court of Appeal Feb 6, 1946 No. Civ. No. 15009Published

Before: Doran

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Holding. The court held that the trial court erred in setting aside an interlocutory divorce judgment based on affidavits that failed to provide substantial evidence of extrinsic fraud and were not filed within a reasonable time.

Issues

Whether an interlocutory judgment of divorce can be set aside via motion based on allegations of extrinsic fraud.
Whether the affidavits provided in support of the motion to vacate constituted substantial evidence of fraud.
Whether the motion to vacate was filed within a reasonable time.

Disposition. reversed

Quotations verified verbatim against the opinion

“Such procedure does not dispense with the necessity of proof; and substantial evidence is required to produce such proof. There is nothing substantial about that which is merely perfunctory.”

“It is also well settled that where the invalidity of a judgment must be shown by extrinsic fraud, a motion to vacate it can only be entertained when made within a reasonable time.”

“In that regard, the affidavits relied on to support the within motion are lacking. The showing is in no sense substantial, indeed it is superficial.”

72 Cal.App.2d 868 (1946) JAMES SYDNEY MARSHALL COWAN, Appellant,

THEDA AGNES COWAN, Respondent.

Civ. No. 15009. California Court of Appeals. Second Dist., Div. One.

Feb. 6, 1946. George Penney and Claude F. Weingand for Appellant.

Edward Feldman for Respondent.

DORAN, J.

This is an appeal from an order granting defendant's motion, in a divorce action, to set aside the interlocutory judgment.

Briefly the record reveals the following: The action for divorce was filed by the husband on December 14, 1943; summons served December 21, 1943; default entered January 4, 1944; interlocutory decree entered January 24, 1944.

On January 10, 1945, one year, less two weeks, after the interlocutory judgment was entered, defendant made the motion referred to herein. Affidavits setting forth what was declared to be extrinsic fraud were the basis for the motion. In support thereof, two affidavits of merit were offered, one by defendant's physician and one by defendant. [1a] The physician's affidavit is as follows:

"Vernon Van Zandt, M. D., being first duly sworn, deposes and says that:"

"He has been treating Theda Agnes Cowan for approximately three (3) years. That she was under my personal care and supervision from the period of December, 1943 to date. That it is my personal opinion and observation that Theda Agnes Cowan was in no condition mentally to discuss any personal problems or to consult an attorney from December 1943 until approximately three or four weeks ago."

Vernon Van Zandt, M. D.""

So far as the doctor's affidavit is concerned, it is of little, if any, value in support of the motion; it is scarcely more than a naked opinion. The expressions "treating Theda Agnes Cowan for approximately three years" and "under my personal care and supervision," reveal nothing in the nature of [870] reasons for the opinion. Section 1872 of the Code of Civil Procedure provides:

Cowan v. Cowan

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DORAN, J.

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