Eischen v. Eischen

SHINN, P. J. Gertrude G. Eischen and George W. Eischen were husband and wife, having intermarried August 14, 1929, in Mexico and in California in 1931. November 4, 1943, Gertrude sued for divorce; George defaulted; an interlocutory decree was entered December 7, 1943, and a final decree April 11, 1945. They remarried August 25, 1945; Gertrude died in April 1956. She left no will and George was appointed administrator of her estate. Gertrude had two children by a former marriage. These are the appellants, Edward Gerlinger and Florabelle Gerlinger Patterson.

The present controversy arose from the following facts: Gertrude owned as her separate property the premises in Montebello where the couple for many years lived and conducted a flower shop. In 1932 she declared a homestead on the property. The effect of the final decree of divorce, if valid and unimpeaehed, was to terminate George’s homestead interest in the property and to reduce his interest as a surviving husband to one-third. (See Zanone v. Sprague, 16 Cal.App. 333 [116 P. 989]; 16 Cal.Jur.2d 603.)

January 28, 1958, George gave notice to appellants of a motion to vacate the final decree upon the ground that entry of the same was procured by means of Gertrude’s fraud upon him and upon the court. The motion was bear'd upon supporting affidavits and an affidavit in opposition, and was granted. It is urged on the appeal from the order that there was no substantial evidence of Gertrude’s fraud and that the attack upon the decree was barred by laches. •

The contention of appellants that there was no substantial evidence of fraud is unavailing. It was shown by the affidavit of the attorney for appellants, who was also Gertrude’s attorney in the divorce, that after the interlocutory decree was entered, and upon an occasion, the date of which was not stated, Gertrude informed him that 'she and George had become reconciled, George having promised to quit excessive drinking, and that she desired to have, the action dismissed; she signed a request for a dismissal, it was signed by the attorney, was forwarded to the clerk for filing but was not filed for the reason that it was not signed by George; another one was prepared and given to Gertrude for George to sign but was never signed. In April 1945, Gertrude informed the attorney that George had continued his drinking and asked whether a final decree could be entered. An affidavit was prepared, was executed by Gertrude and upon presentation of the affidavit to the court the final decree was signed and entered. [161]