Hansen v. Hansen

FOURT, J. This is an appeal from an order which vacated and set aside an interlocutory decree of divorce.

On March 5, 1959 the plaintiff filed a complaint for divorce. In the complaint she alleged, among other things, that the defendant had been guilty of extreme cruelty and that the greater part of the real property acquired by the parties since their marriage was her separate property, and she requested that it be declared to be hers. She also asked for distribution of the community property, support and maintenance, attorneys’ fees and other benefits. In a first amended complaint she in effect admitted that there might be some basis upon which the real property could be construed to be community property rather than separate property, as alleged in the original complaint.

The defendant filed an answer to the amended complaint and filed a cross-complaint which was answered by the plaintiff. The cause was set for trial December 29, 1959. Upon the court’s own motion the trial was advanced to April 5, 1960, some 13 months following the filing of the original complaint. During most of the interim between the filing of the pleadings and the trial date the defendant was in effect restrained from being in his family home, was stopped from collecting any rents from the rental units of the parties and was restrained from using any of their bank accounts; further, he was paying plaintiff for her support and maintenance.

When the case was called for trial on April 5, 1960, according to an affidavit of defendant he was represented by the firm of Barsam and Leveque, Attorneys at Law, by Barsam. Defendant then knew that his wife had at first claimed all of the real property as her separate property, and that for over a year he had been practically eliminated from any connection with the properties. In such a setting the attorneys for the parties conferred and then went into the chambers of the judge with reference to the case. The defendant apparently was not immediately present at the talks between the lawyers, nor was he in the chambers of the judge. Both counsel talked at length with the plaintiff. Later in the morning defendant’s [329]counsel came out of the courtroom to the hallway, where defendant was standing, and told defendant of plaintiff’s offer of settlement, whereby defendant would receive less than 20 per cent of the community property, and plaintiff would receive more than 80 per cent of such property. Defendant’s lawyers stated to him in part . . . “Well, you won’t get any more if you take it into court, this is what the judge decided, and this is it.” Nothing was said to the defendant to the effect that he might demand that the matter be heard in open court, and that he might have a decision by the judge based upon competent evidence introduced in open court. The defendant further stated in his affidavit that he was unaware of the problem of plaintiff’s counsel in obtaining any offer whatsoever and that he was fully cognizant of plaintiff’s stringent demands, and that he later learned that the plaintiff was furious at learning that the defendant would receive anything from the community assets.