Porter v. Porter

BARNARD, P. J. This in an appeal from an order denying a motion to vacate an interlocutory decree of divorce. The parties were married in 1948. About the first of December, 1954, the defendant returned to their home in the middle of the night and found the plaintiff and a “mutual friend” in what may charitably be referred to as a compromising position. On December 7, 1954, the parties entered into a written agreement disposing of all their property rights and claims upon each other. On January 4, 1955, the plaintiff filed this action asking for a divorce and that the property settlement agreement, which was attached to the complaint, be approved by the court and made a part of the decree. An interlocutory decree granting a divorce to the plaintiff was entered on January 13, 1955, in which it is stated that the property settlement agreement is fair, just and equitable, is approved by the court, and is made a part of the decree.

On July 5, 1955, the plaintiff filed notice of a motion to vacate the judgment, award the plaintiff a new trial, and allow her to file an amended complaint which was attached thereto. The only change in the proposed amended complaint was to allege that the parties owned certain community property and asking that such property “be equitably disposed of between the parties.” The motion was heard by the court upon affidavits of the parties and others, and upon oral testimony. It was and is plaintiff’s contention that she was prevented from having a fair trial because of her mistaken belief that the property in question was not community property, and that she signed the agreement waiving all interest in this property as a result of threats made by her husband, and believing his representations that this was his separate property. The court entered an order denying this motion. In a written opinion the court said:

“The only suggestion contained in all of plaintiff’s testimony is that defendant stated to her that unless she entered into the contract and brought the action in the manner he desired that he would bring action for divorce and would make charges of her misconduct. She apparently concedes that there was at least some grounds for making these charges. There is every indication that if plaintiff had any community interest in any property that it was of rather small consequence. Plaintiff is a mature woman, and it appears from the evidence that it was her mature and deliberate choice to disregard and waive any possible claim she might have of any community interest and avoid any contested action. All [801]of these facts appear to be completely established by the testimony offered.”