Clark v. Clark

KNIGHT, J. Plaintiff was granted an interlocutory decree of divorce, and pursuant to stipulation made in open court the trial court embodied in the decree the terms of a property settlement agreement theretofore entered into between the parties whereby plaintiff was awarded the custody of the minor child, $60 a month for its maintenance, $25 a month for the support of the plaintiff, and certain property was set apart to the respective parties as their sole and separate property. Subsequently plaintiff employed other counsel, and about two and a half months after the entry of the decree filed a motion under section 473 of the Code of Civil Procedure to set aside and vacate the provisions of the decree adjudicating the property rights upon the grounds of mistake, inadvertence and excusable neglect. The motion was denied, and from the order made in that behalf plaintiff prosecutes this appeal.

The law is well settled that an application for relief under said section 473 is addressed to the sound discretion of the trial court, and that an appellate court will not interfere with the exercise of such discretion unless there is a clear showing of an abuse thereof. Here the record shows that the motion was heard on the merits before the trial judge who granted the decree, and it is apparent that under the circumstances a finding that the trial court abused its discretion in denying the motion would be wholly unwarranted.

As shown by the averments of the affidavit filed by plaintiff in support of her motion, she sought to have the decree set aside upon the grounds that she accepted the property settlement and stipulated to its confirmation on the advice of her former attorney; that he was without knowledge as to the value of the properties involved, and erroneously advised her that she had no community rights in certain property set apart to her husband, consisting of a one-third partnership interest in two stores; that as a consequence she was induced to accept a property settlement that was inequitable and unfair to her.

It appears from the record, however, that plaintiff herself was at all times entirely familiar with the nature, character and value of the properties involved, and the manner in which they were acquired; and that before agreeing to the settlement and prior to entering into the stipulation to confirm the same she discussed the terms thereof in detail with [326]her attorney and with friends; furthermore it appears that when the property settlement agreement was presented to the trial court for confirmation the trial court took the” precaution to inform plaintiff that she should fully understand the settlement before stipulating to its confirmation, and to that end she was given every opportunity to reconsider the matter and to express her dissatisfaction therewith and to reject it if she believed it was unfair to her; and thereafter she again stipulated that the terms thereof be embodied in the decree.