Kuchera v. Kuchera

WOOD (Parker), J. Plaintiff appeals from an order granting defendant’s motion to vacate a final judgment of divorce. Plaintiff and defendant were married on April 24, 1920. On January 14, 1949, plaintiff filed a complaint for divorce alleging extreme cruelty. On February 24, 1949, plaintiff obtained an interlocutory decree of divorce by default; and a property settlement agreement was approved by the court, and defendant was ordered to pay plaintiff $100 a month commencing March 3, 1949.

On January 21, 1953, plaintiff filed an affidavit in support of her application for final judgment of divorce. In the affidavit it was stated that since the granting of the interlocutory judgment the parties had not become reconciled, and had not lived or cohabited together. On January 22, 1953, a final judgment was entered.

On June 8, 1953, defendant filed a notice of motion to vacate the final judgment on the ground that it had been secured upon a false affidavit executed by plaintiff. The motion was submitted upon affidavits of the parties. On June 25, 1953, the motion was granted. The minutes of the court, with respect to granting the motion, are as follows: “Motion of defendant to vacate and set aside Final Judgment of Divorce (Submitted June 18, 1953) Motion granted. (The affidavits of both parties show that they did live together for an extended period, which is contrary to the affidavit for the final decree).”

The affidavit, filed by defendant in support of his motion to vacate the final judgment, recited, in part, as follows: At the time the interlocutory judgment of divorce was granted the parties were living apart. During March, 1949, he learned that plaintiff was in a hospital. A few days later he took her [437]to her home, which was on Putnam Street where they had lived prior to their separation. Thereafter, for several weeks, he visited plaintiff at her home almost every evening. After she returned to her occupation, defendant would “pick her up” where she worked and they would have dinner in a restaurant. He then “started sleeping on a davenport” in her home. In the mornings plaintiff would prepare breakfast and then they would go to their jobs. She stated that she would never be a wife to him as long as they lived in the house on Putnam Street but that if defendant would build a new home for her they would start all over again. Thereafter they looked at lots in various locations, and on May 16, 1949, they bought a lot on Webster Avenue. Defendant then drew plans for a new house, and did at least 25 per cent of the work in constructing it. Plaintiff and defendant used their joint funds to purchase the lot and construct the house. While the new house was being constructed, defendant lived with plaintiff in the house on Putnam Street. He ate and slept there and lived a normal married life except that they had no sexual relations because plaintiff was not well. During the time of his resumed residence at the Putnam Street house he gave plaintiff his pay check and she returned to him such money as he needed for his personal expenses. In December, 1951, they moved into the new house on Webster Avenue where they occupied the same bedroom but slept in twin beds. During 1952 and the early part of 1953 they entertained old friends and neighbors in their new home, and they met and worked with people as husband and wife. Federal and state income tax returns for the years 1951 and 1952 were made by them as husband and wife. Property taxes on the new home were assessed in the names of both plaintiff and defendant. On January 19, 1953, a dispute arose between them and the next day he left the home on Webster Avenue and has not resided there since that time. Several days after he left that home he discovered that plaintiff had executed an affidavit for final judgment of divorce and that a final judgment had been entered.