Tomb v. Tomb

California Court of Appeal Feb 4, 1932 No. Docket No. 8238.Published

Before: Jamison

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Holding. The court held that a trial court has the inherent power to set aside a divorce decree obtained through extrinsic fraud, such as when a spouse secretly obtains a decree after reconciling with and cohabiting with the other party.

Issues

Whether a court has the inherent power to set aside a divorce decree obtained through extrinsic fraud after the death of one of the parties.
Whether the evidence of reconciliation and the husband's secret procurement of a divorce decree constitutes extrinsic fraud.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is a well-recognized principle that a court of general jurisdiction has the inherent power to set aside a judgment obtained through fraud practiced upon the court.”

“We are of the opinion that there is substantial evidence to support the order of the trial court in setting aside and vacating the said interlocutory and final decrees of divorce.”

JAMISON, J.,

pro tem.

This is an appeal from the order of the court setting aside and vacating an interlocutory and final decree of divorce alleged to have been fraudulently obtained.

The facts briefly stated are as follows:

On May 8, 1923, James E. Tomb filed an action for divorce against his wife, the defendant. On May 11, 1923, defendant filed her answer denying the material allegations of the complaint which answer was, by stipulation of the parties, withdrawn on May 31, 1923. On said last-named date a property settlement was made by the said Tomb and wife. By

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this settlement the separate'property of each was to remain the property of each of them, and the community property consisting of household furniture was equally divided between them. It was also agreed therein that the said Tomb would pay his said wife the sum of !$2,400 in installments of $75 per month for the first eleven months and thereafter $100 per month until said sum of $2,400 was paid in full.

The said husband, James E. Tomb, died on July 24, 1929, leaving an estate valued at $16,000. On August 16, 1929, respondent filed a motion to set aside and vacate the interlocutory decree of divorce made and entered on June 28,1923, and the final decree of divorce entered on July 7, 1924. A' hearing was had on said motion on August 29, 1929, and upon this hearing the court made its order vacating and setting aside the said final decree of divorce.

Respondent produced evidence as said hearing in substance as follows: That she and the said Tomb were married in 1917 and thereafter continued to live together as husband and wife until about the 8th of May, 1923; that during this period they were living in the city of Vernon, California; where the said Tomb was in the employment of the Woodward-Bennett Packing Company in the capacity of livestock buyer and official livestock weigher. That when said Tomb brought the said action for divorce against respondent she moved to Huntington Park, California. That about the first of June, 1923, her husband came to her home in Huntington Park and told her he had made a mistake in bringing the divorce action and that he wanted to forget the matter and again live with respondent. That she consented and thereafter she and the said- Tomb continued to live together as husband and wife until his death.

Tomb v. Tomb

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JAMISON, J.,

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