Gardner v. Gardner

MOORE, P. J. The question for decision is whether the trial court abused its discretion in denying defendant’s motion to vacate an interlocutory decree of divorce and the preceding order for default, where service of summons was made in a sister state five months and 29 days prior to the decree and the motion was filed more than two months thereafter:

Basing his action upon extreme cruelty plaintiff filed his complaint on June 5, 1944.. It was served by the sheriff at Jamestown, North Dakota, 14 days later. Defendant promptly consulted an attorney in the Dakota city and on June 22 forwarded a letter to plaintiff’s counsel, attorney Paap, to the effect that she had been advised that “it may become necessary for me to return to California in order to protect my children until they become self supporting.” In her reply to Mr. Paap’s request that she sign an appearance she wrote that she had no objection to her husband’s being divorced so long as the children suffered no detriment by reason thereof, and volunteered to execute the appearance. On June 14, 1944, Mr. Paap wrote that plaintiff would continue to support the children. On September 25, 1944, defendant’s default was entered. Subsequent to the entry of default defendant wrote Mr. Paap as follows: “If he will pay me $10,000,1 will let him have his divorce and never cross his path again;” and 15 days later she wrote plaintiff that it would be all right for him to proceed with the divorce so long as he would send her the money. Having made no reply to her letters plaintiff obtained his interlocutory decree on November 15, 1944.

Thus it appears that not only was defendant in fact served with process and actually informed of the several events in the series of occurrences which preceded the decree but also she had the benefit of the advice of counsel and in turn gave plaintiff express consent that he might proceed to the final act in. the drama by obtaining a decree of divorce. These facts recited in the supporting affidavits of respondent are. deemed to be true. (Doak v. Bruson, 152 Cal. 19 [91 P. 1001].)

Defendant contends that especially in divorce actions the law favors trials on the merits; that it regards with disfavor attempts to take advantage of mistake, surprise or excusable neglect, and that section 473a of the Code of Civil Procedure evidences a legislative intent to provide simple means for gaining relief from technical defaults. General principles do not necessarily determine the right of one to [272]prevail merely by virtue of their pronouncement. The merits of any justiciable controversy must be adjudicated upon all of the facts presented to the court. If the facts found suggest no exception to general principles the latter may prevail and decision result accordingly. But if the conduct of a party invokes the application of an exception to a pertinent general principle the decision may stem from the application of such exception to the facts found.