CARTER, J. I dissent. It appears from the record in this case that a charge was made in the affidavit in support of plaintiff’s motion to set aside a final decree of divorce that defendant falsely stated in his affidavit in support of his motion for the final decree that he had complied with all of the terms of the interlocutory decree; that decree declared that plaintiff was entitled to a divorce. Without passing on the question of whether a final decree of divorce may be set aside for fraud where that charge is based upon an allegedly false statement in the supporting affidavit for the final decree that the payments for support and medical care ordered by [127]the interlocutory decree had been made, it is clear that defendant in this ease is entitled to the relief authorized by the Soldiers’ and Sailors’ Belief Act of 1940 (50 U.S.C.A.App. § 521). That act reads;
“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in' this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service. ’ ’ In the instant case we may assume that proper medical expenses were incurred on behalf of the minor child of plaintiff and defendant prior to the time defendant filed his affidavit for a final decree; that pursuant to the interlocutory decree defendant was obligated to pay those expenses; and that plaintiff presented evidence to the effect that defendant was aware of those obligations, and also was in default in the sum of $30 in payments for the support of plaintiff, which evidence would be sufficient to support a finding that defendant knowingly made a false affidavit. But that is not the whole story. Defendant should have had an opportunity to meet that charge. He is the only person who can rebut the charge that he knew that medical expenses had been incurred, and the charge that he was in default $30 on the support claim. Therefore, it is vitally necessary that he have that opportunity. Plaintiff’s evidence is very weak on the subject of whether defendant knew of the medical bills. She testified to nothing more than her conclusion that some of the bills had been sent to defendant by the creditors. She did not call any of the creditors to relate how, when, or under what circumstances the bills were sent to defendant or how they were addressed if sent by mail. Defendant might well by his testimony show that he had no knowledge or notice of such claims when he made the affidavit, thus completely exonerating him from any fraud. How under those circumstances can it be said that defendant’s ability to conduct his defense is not, in the language of the Soldiers’ and Sailors’ Relief Act, “materially affected.’’ Fraud is a serious charge, and the lower court by accepting plaintiff’s evidence of fraud on de[128]fendant’s part has, in effect, found defendant guilty of perjury, without affording him any opportunity to be heard. And that result is reached without achieving cmy benefit or advantage to either plaintiff or defendant. Plaintiff is fully able to enforce the obligation imposed by the interlocutory decree even though the final decree stands. She loses absolutely nothing by having the determination of the issue postponed. On the other hand defendant suffers the serious and grave consequences of having a solemn and binding finding of fraud and perjury entered against him without being accorded an opportunity to be heard in his own defense because of his absence in military service. Certainly that is one of the very things that the Soldiers’ and Sailors’ Relief Act was designed to avoid.
It must be remembered that the basis for denying a final decree of divorce upon the ground of the failure of the movant to comply with the terms of the interlocutory decree is that the movant has willfully failed to comply with the decree, is in contempt of court, and that for those reasons equity will not act to grant the final decree. For illustration, it is said in Weeks v. Superior Court, 187 Cal. 620, 622 [203 P. 93], after stating that under section 132 of the Civil Code, either party may obtain a final decree after a year has expired;
“But that does not mean that a party to the action may have a final decree entered when to do so would be a flagrant abuse of the principles of equity and of the d/ae administration of justice. . . . No party to an action can, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to its legal orders and processes.” (Italics added.) Applying equitable principles in the instant case we have seen that defendant has been deprived of his day in court. He is not in contempt inasmuch as the evidence does not show ability to pay on his part, and certainly he should be entitled to show that he was unable to pay the medical expenses if such was the fact. Having shown that, there would have been no fraud on his part in obtaining the final decree of divorce. If the movant for the final decree is not able to make the payments required by the interlocutory decree, he is not in contempt and may have a writ of mandate to compel the entry of a final decree notwithstanding his default in such payments. (Isakson v. Superior Court, 130 Cal.App. 180 [19 P.2d 840].)
[129]Conceding that the granting or denial of a motion to postpone the hearing of a matter in the trial court is ordinarily within the discretion of the trial judge, and that his ruling on such a motion will not be reversed unless it clearly appears that there has been an abuse of such discretion, I doubt if it can be said with any degree of fairness that such abuse does not clearly and affirmatively appear in every case where, as here, a person absent in the armed service of the United States is charged with perpetrating a fraud upon a court, and his testimony is necessary to refute such charge of fraud, and he is denied an opportunity to appear and offer evidence in his own defense. To say that he is not prejudiced by such a ruling is, to my mind, a perversion of the plainest principles of equity and justice. This is not a case where the defense can be adequately presented by evidence from sources other than from the party himself. He is, in effect, charged with perjury. He alone can refute the charge. The court refuses to postpone the hearing to permit him to do so, and then finds him guilty as charged. Obviously, such a ruling is not the result of the exercise of a judicial discretion as that term has been defined in the decisions of this court. It is clearly arbitrary and unreasonable and should not be permitted to stand.
In my opinion the order vacating the final decree should be reversed.
Schauer, J., concurred.
Appellant’s petition for a rehearing was denied March 29, 1945. Carter, J., and Schauer, J., voted for a rehearing.