Gump v. Gump

NOURSE, P. J.

Two actions were filed against the defendant—one for the rescission of a property settlement agreement, and one to set aside a final decree of divorce. The actions were consolidated for trial and plaintiff had one judgment granting her the relief prayed for in each action.

The defendant herein commenced a suit for divorce against this plaintiff in February, 1936. His wife filed a cross-complaint. A property settlement was executed by the parties, and, on March 19,1936, an interlocutory decree of divorce was entered on the cross-complaint. On March 31, 1937, a final decree of divorce was entered at the instance of the husband while the parties were living together openly as husband and wife. The payments in the nature of alimony called for by the property settlement were all made for the benefit of the husband by his father, and a full release was taken from this plaintiff of all claims arising under the agreement.

On this appeal the first two points raised by appellant are that the evidence does not support the finding' that the parties were reconciled before the entry of the final decree. Upon his statement of the evidence the question would appear to be debatable. But, when this question is raised, we must look to the evidence supporting the finding as well as to that which is contradictory. With the exception of the denials of the appellant, which were generally in the nature

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of a failure of recollection, the witnesses testified that from about May 1, 1936, to about March 1, 1937, the parties were constantly in the company of each other and had marital intercourse on many occasions; that, from about March 1, 1937, to about May 1, 1937, the parties continuously lived together, part of the time in an apartment maintained by the wife, and later in an apartment maintained by the husband. They freely cohabited and conducted themselves as husband and wife. The parties were living in Hollywood where both were engaged in a mutual struggle to make a living—the appellant as a song writer, the respondent as an actress. Following the entry of the interlocutory decree the wife shared with the husband her food, her living quarters, and her alimony. The respondent testified that, from about the time of the entry of the interlocutory decree, the appellant frequently urged a reconciliation, and that she heeded these solicitations about February 3, 1937, and that later she moved into his apartment and lived with him until after the entry of the final decree of divorce. A Mr. Trebitseh occupied another room in the same apartment. He paid one-third of the rent of the apartment, and the appellant paid two-thirds. During this period the home of the husband was the only known residence of the wife, and the place to which her mail was addressed. It was in this manner that she received notice of the entry of the final decree, when she and the appellant were awakened at about 11:30 A. M. by the delivery of the morning mail. She testified: “Mr. Gump and I were still sleeping when Mr. Trebitseh came in and brought my mail and it was the final decree and in an open envelope and I did not pay any attention to it, I just discarded it and Mr. Gump didn’t pay any attention to it either, he just glanced at it and said, ‘Oh, that is nothing.’ ” She also testified that she continued to live with the appellant in this apartment for some weeks following the entry of the final decree, and that she was led to believe from his conduct that this decree was void and that they had become fully reconciled.