Bonfield v. Bonfield

LANGDON, P. J.

This is an appeal by the defendant from an order of the superior court in and for the city and county of San Francisco setting aside a final decree of divorce in favor of plaintiff.

The action was commenced on April 28, 1921, by the filing of a complaint charging extreme cruelty. After trial plaintiff secured an interlocutory decree of divorce on May 3, 1921. On February 23, 1923, defendant made a motion for the entry of the final decree. Plaintiff appeared and objected to the granting of the motion upon the ground that since the entry of the interlocutory decree the parties had lived together as husband and wife. As a result, the motion for a final decree of divorce was denied. Later, the parties entered into a stipulation, waiving all legal objections to the entry of the final decree and requesting the court to enter the same, and the defendant agreed to pay to plaintiff the sum of six hundred dollars, in monthly installments

[707]

of fifty dollars. This stipulation was signed by the attorney then acting for plaintiff and the attorney for defendant. It was filed in court on May 11, 1923, and thereupon the order was made granting the motion of defendant for the final decree. On June 12, 1923, the plaintiff served a notice of motion to set aside the final decree of divorce. This motion was supported by the affidavit of plaintiff. It recites the entry of the final decree on May 12, 1923, and states that on or about the eleventh day of May, 1923, the defendant, through the attorney for the plaintiff, signed a certain stipulation, wherein it was stated in substance that the final decree might be entered altering and modifying the terms of the interlocutory decree heretofore granted on the third day of May, 1921; that the stipulation purports to be entered into by the attorney for plaintiff and the attorney for defendant; that said stipulation was signed on behalf of the plaintiff by her attorney, without her knowledge or consent, and that the terms set forth in said stipulation for final decree were without her knowledge and consent and that it was made wholly and solely at the request of the defendant and without any knowledge on the part of his attorney, and was solely made and agreed to by and between plaintiff’s attorney and the defendant; that the attorney for plaintiff repeatedly importuned her to agree to the granting of the final decree in accordance with the terms set forth in said stipulation; that in order to compel the plaintiff to sign a stipulation granting the final decree, her attorney informed her that the defendant was making every effort to have her sent to the insane asylum and advised her rather than go through that it would be better for her to sign said stipulation; that she, thereupon, "refused so to do, and that afterwards, without her knowledge and consent, her said attorney signed said stipulation as her attorney without any authority so to do. The foregoing statements are contradicted in counter-affidavits, but as the trial court has resolved the conflict in plaintiff’s favor, we shall have to accept the statements in her affidavit as established facts.