Valentin v. Valentin

NOURSE, P. J. This is an appeal in a divorce action from an order denying a motion to set aside an order appraising an automobile, part of the community property of the parties and for reappraisement. In November, 1947, appellant, [590]wife, was granted an interlocutory decree of divorce in which, as her one-half of the community property she was, among other things, awarded “one-half the market value of the 1941 Hudson automobile.” In that respect the findings of fact and conclusions of law contain the following: “that said Hudson automobile hereinafter mentioned shall be sold at the fair market value thereof, and the said automobile shall be sold by the defendant, and the said net purchase price shall be divided equally by the parties plaintiff and defendant herein.” April 8, 1948, the following order was filed:

“This cause, having come regularly on for hearing, and plaintiff above named being represented by her counsel, Delia R. Deep, and defendant herein being represented by his counsel, William E. Ferriter, and the Court being advised by both parties that the only matter before the Court was the valuation of a certain automobile, which the Superior Court of the City and County of San Francisco, State of California, had heretofore ordered sold and the proceeds of said sale divided between the parties hereto or that the defendant in said action pay one-half of said appraised value of said automobile to the plaintiff herein, and the Court thereafter having appointed an appraiser of said automobile and the appraiser having reported that the automobile in question was of the value of $478.00, and the matter being submitted to said Court.

“It is Hereby Ordered, Adjudged and Decreed that the valuation of said automobile in dispute between said parties is of the total value of $478.00 and that the said plaintiff herein is entitled to one-half of said sum, or the sum of $239.00.”

No appeal was taken from this order, but on April 19, 1948, appellant filed a notice of motion to set aside the appraisement and for reappraisement, “making said appraisement the market value of said car as is provided in and by the interlocutory decree of divorce heretofore made and entered herein. ’ ’ The notice states that the motion will be made on all the records “and upon oral sworn testimony to be taken at said time and place,” but does not state any grounds for the vacation except as implied in the above. An affidavit of appellant in support of the motion states that the interlocutory decree provides that each party have one-half of the market value of the automobile; that the market value is the sum of $1,000 for which it can be sold in the open market; that the appraiser, Mr. Harwood of Glen C.