Sell v. Sell

STONE, J. pro tem.* This is an appeal from an order denying defendant-appellant’s motion to vacate and set aside interlocutory and final decrees of divorce.

Defendant’s wife secured an interlocutory decree of divorce April 23, 1957. The plaintiff wife owned the family home and defendant remained there for three weeks after the interlocutory had been entered. He then moved into separate quarters, but after two months returned to the family home. Defendant [390]and his wife continued to live together without incident for approximately 20 months, when defendant accused one Elizabeth Griffith of talcing $7,000 from his wife. An altercation ensued between defendant and Mrs. Griffith and as a result defendant was placed in custody for 30 days upon a charge of assault. While defendant was in custody, Elizabeth Griffith called the wife’s attorney, requesting him to enter the final decree of divorce. The attorney, however, first telephoned the wife and questioned her about the reconciliation since he knew that she and defendant had lived together after the entry of the interlocutory. The wife’s attorney testified:

“Mb Gall: Q. Did you talk to Mrs. Sell herself at— A. When I—when I got this message that Mrs. Sell wished this paper, I phoned Mrs. Sell and talked to her at home.

“Q. Yes? A. My reason for doing so was because I knew that there had been this difficulty wherein Mr. Sell had been sent to Santa Eita and I wanted to find out from her as to whether or not there had been a reconciliation before obtaining a final decree.

“Her answer was that Mr. Sell had been allowed to move back into the house because he had no money, he was out of work, and had no place to live, and she let him come back there, but there had never been a reconciliation.’’ Accordingly, the attorney prepared the affidavit for the final which the plaintiff signed before a notary public. The affidavit was filed and the final decree was entered.

During the 30 days the defendant was in custody his wife moved into a rest home, but upon his release defendant moved her back to the family home and they resumed living together. One month after the entry of the final decree, appellant and his wife executed reciprocal wills, each acknowledging the other as his respective spouse. The wills were executed on July 3, 1959; the defendant denied any knowledge of the final decree until approximately three weeks after the wills had been executed. On October 17, 1959, the wife died and on December 8, 1959, letters testamentary were issued to appellant, who commenced this proceeding to have the interlocutory and final decrees set aside on April 5, 1960.