Fennell v. Fennell

' BURKE, P. J.—On On June 29, 1960, plaintiff wife filed an action for divorce on the ground of extreme cruelty. A copy of the summons and complaint and a copy of an order to show cause were served on defendant husband on July 1, 1960. At the hearing of the order to show cause on July 7, 1960, both of the parties were present in court and entered into a stipulation and an order was made thereon. Thereafter on July 19, 1960, the default of the defendant was entered. An interlocutory judgment of divorce was granted to plaintiff on September 13 and entered on September 16, I960.

On December 19, 1960, defendant filed a motion to vacate his default and the interlocutory judgment of divorce under the provisions of section 473 of the Code of Civil Procedure. This motion was set for hearing on December 30, I960,, and was granted. The appeal is from the order granting that motion.

[269]Plaintiff wife contends that the trial court abused its discretion by vacating the default of defendant and the interlocutory judgment of divorce. The evidence before the trial court on the motion to vacate consisted of an affidavit by defendant and affidavits by plaintiff and her counsel. In defendant husband’s affidavit he recites that after the divorce action was filed he went voluntarily to the office of his wife’s attorney and received a copy of the summons and complaint. He stated that he attended the order to show cause hearing and that both he and his wife agreed to the terms set forth in the order that was made. He asserts that at the conclusion of the court hearing his wife’s attorney “stated to us both that we should attempt to work out a property settlement agreement, and that when we had arrived at such an agreement, to contact him and he would put the case on calendar. ’ ’ He asserted that in the months following he and his wife discussed the division of property but never did arrive at any agreement ; that his wife made no mention she was going ahead with the divorce; that he received no information concerning the interlocutory decree; that in the week of November 21, 1960, he and his wife again discussed a property settlement and agreed upon certain terms but that when she did not want to settle it in writing he became concerned and consulted a lawyer. At this time he learned that a divorce had been granted.

In the wife’s affidavit she stated that when she went to her attorney her husband accompanied her and that he told her attorney that if she didn’t get a divorce he would get one, but that he would prefer that she get it. She said that her attorney advised defendant on a number of occasions in her presence that if he wanted to contest the action he should employ his own attorney and answer the complaint; that defendant stated that he felt this would be a waste of money and that he did not want to contest the case. The wife asserted that she and defendant had reached a property settlement agreement.