Keller v. Keller

JOHNSON, J.,

pro

tem.

This is an appeal by the defendant from a final decree of divorce, granted in favor of plaintiff after a hearing at which defendant contended that the application for the final decree should be denied, on the ground that the interlocutory decree had been followed by a reconciliation between the parties and conjugal cohabitation.

The interlocutory decree of divorce on the ground of extreme cruelty was granted in favor of plaintiff after failure of defendant to plead to the complaint, and was entered on June 22, 1928. No attempt was made by defendant to vacate the interlocutory decree, but on June 19, 1929, he filed a notice that on June 21, 1929, he would apply to the court for an order denying a final decree on grounds set forth in an accompanying affidavit.

The affidavit stated in effect that from June 22, 1928, the day of the interlocutory decree, to July 3, 1928, the parties had lived together as husband and wife, and that during that period the plaintiff had declared that she was sorry she had procured the decree and desired the marital relationship to continue, and that though, to her regret, she was about to make a trip to Europe, she would look forward with pleasure to a resumption of companionship with

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defendant on her return. Plaintiff further averred that though it had been agreed that the interlocutory decree should be set aside and that the parties should again live together as husband and wife, the plaintiff had since changed her mind and refused to return to the defendant.

On June 24, 1929, plaintiff made her application for a final decree; and after certain intermediate proceedings not material to this appeal, a hearing was had on July 15, 1929, at which both parties appeared with their attorneys and gave their testimony. The testimony was in some particulars sharply conflicting, and was resolved by the court in favor of plaintiff, whereupon the final decree was made and entered on July 17, 1929.

The parties had settled their property rights before the suit for divorce, and the interlocutory decree provided that beginning July 1, 1928, the defendant should pay plaintiff $100 a month for her maintenance; but with plaintiff’s consent this provision was omitted from the final decree.