Neblett v. Neblett

DORAN, J. According to the appellant’s brief, plaintiff and defendant were married November 24, 1930, and separated February 5,1943. The parties have two minor daughters, aged about 14 and 11 years. The appellant husband served in the United States Army from June 21, 1941 to March 4, 1947. Respondent wife filed the present divorce action December 9, 1943, alleging extreme cruelty, and an interlocutory judgment was entered on August 22, 1947. There was, as stated in respondent’s brief, “considerable legal skirmishing,” including contempt proceedings against Colonel Neblett, and the filing of a cross-complaint charging the wife with cruelty, and unbecoming conduct with 17 named men.

On December 26, 1944, appellant and respondent entered into a written settlement agreement signed by the parties and the attorneys, by which Mrs. Neblett accepted the husband’s offer reading as follows: “Upon the dismissal with prejudice of your Amended Complaint and the concurrent dismissal with prejudice of my Cross Complaint and the Amendment thereto, I will pay you $300.00 a month for the support of yourself and the two children until such time as a decree of divorce is entered between us in some court. ... I will file an Appearance and Waiver in any divorce action . . . provided that you base your grounds for a divorce on facts that do not in my opinion tend to impugn my character as a husband or as a man. ’ ’ Other provisions dealt with alimony, joint custody of the children, a division of property, and attorney fees. Pursuant thereto, dismissals with prejudice of complaint and cross-complaint, signed by the respective parties and attorneys, were filed in the case. This completes what appellant’s brief denominates the “First Stage of the Action.” At this point it may be noted that, subsequent to the dismissal, the wife had filed a new action for divorce in Los Angeles County, and that the husband had likewise filed a similar action in Richmond, Virginia.

[861]The so-called “second stage” begins with the filing by respondent wife, June 14, 1945, of a “Notice of motion for order setting aside plaintiff’s dismissal ... on the ground of fraud, etc., under Sec. 473, C.C.P.” The grounds of such motion were specified as follows: “(1) That the defendant (husband) obtained the said dismissal ... by and through his fraud ... ; (2) . . . that defendant has failed and refused to keep his promises contained in his agreement and to abide by its terms, which agreement constituted the consideration for plaintiff’s said dismissal with prejudice of the above entitled action. (3) ... surprise, inadvertence, mistake and excusable neglect of plaintiff and her attorney under the provisions of Section 473 of the Code of Civil Procedure.”