Mackie v. Mackie

LILLIE, J. After 20 years of marriage, plaintiff wife, now 80 years old, sued defendant for divorce in 1959 alleging a course of grievous physical and mental cruelty. Upon charges and proof—that defendant strangled her to unconsciousness in 1957 and repeatedly beat her, on four occasions resulting in blackened eyes (1958), that she lived with defendant in a state of terror and since 1958 has avoided him whenever possible, that several times defendant has been in jail, and that defendant has failed and refused to work and support her (amended complaint for divorce, par. V)—an interlocutory decree of divorce was entered on October 8, 1959, awarding her a divorce and the family home. From this judgment defendant appealed; it was affirmed November 28, 1960. (Mackie v. Mackie, 186 Cal.App.2d 825 [9 Cal.Rptr. 173].) On February 9, 1961, plaintiff executed a proper affidavit and filed her application for final decree of divorce; final judgment was entered February 21, 1961. Thereafter, defendant moved to vacate the same upon the ground that plaintiff committed a fraud on the court, in that her affidavit had failed to disclose that the parties “lived together as husband and wife and cohabited” during the interlocutory period. Defendant appeals from the order denying the motion. Appellant’s sole contention is that inasmuch as “the parties lived together after the entry of the Interlocutory Decree” (A.O.B., p. 6), the lower court erred in refusing to vacate the final judgment.

Assuming all matters set up in defendant’s affidavit supporting his motion to vacate to be true, he has failed to make out a ease of fraud which would justify vacation of the final judgment; indeed, had the motion based thereon been granted, the showing would have been insufficient to thereafter support a denial of entry of the final decree.

Under the law of this state, whatever their conduct [550]with each other subsequent to entry of the interlocutory judgment, to justify denial of a dissolution of the marriage it, at least, must have been such as to constitute a reconciliation of the parties (Olson v. Superior Court, 175 Cal. 250 [165 P. 706, 1 A.L.R. 1589] ; Nacht v. Nacht, 167 Cal.App.2d 254 [334 P.2d 275]) ; and it is the duty of the court, where grounds for divorce have been established by an interlocutory decree which has been unassailed until application for final decree, to enter the latter “unless there is clear and cogent proof of reconciliation and resumption of connubial relations, or some other legal ground for denying dissolution of the marriage." (Keller v. Keller, 122 Cal.App. 712, 715 [10 P.2d 541] ; Dean v. Dean, 77 Cal.App.2d 98 [174 P.2d 705].) Mere cohabitation or living on the same premises is not sufficient to constitute a ground for denial of a final judgment. Living in the same house, or engaging in acts of sexual intercourse, or cohabiting together as husband and wife during the interlocutory period does not as a matter of law establish a reconciliation of the parties; in addition, there must be an intent on the part of the prevailing party to condone past conduct of the offending party and to restore him to all marital rights. (Estate of Abila, 32 Cal.2d 559 [197 P.2d 10] ; Dean v. Dean, 77 Cal.App.2d 98 [174 P.2d 705] ; Walsh v. Walsh, 108 Cal.App.2d 575 [239 P.2d 472]; Nemer v. Nemer, 117 Cal.App.2d 35 [254 P.2d 661] ; Peterson v. Peterson, 135 Cal.App.2d 812 [288 P.2d 171] ; Garibaldi v. Garibaldi, 153 Cal.App.2d 170 [314 P.2d 89].) “A reconciliation occurs when the circumstances show that the parties intended to reunite as husband and wife (Estate of Abila, 32 Cal.2d 559 [197 P.2d 10] ; Nemer v. Nemer, 117 Cal.App.2d 35 [254 P.2d 661]), and when there has been an unconditional forgiveness by the prevailing party. (Angell v. Angell, 84 Cal.App.2d 339 [191 P.2d 54].)" (Nacht v. Nacht, 167 Cal.App.2d 254 261 [334 P.2d 275].) Accordingly, rule 20, Rules for the Superior Courts,* requires the applicant for final judgment of divorce at the time of the motion therefor, to submit to the court “an affidavit to the effect that, among other things (a) the parties have not been reconciled, and (b) that they have not lived or cohabited together since the granting of the interlocutory decree. ’ ’ This plaintiff did; her affidavit asserted “2. That since the granting of said interlocutory judgment, (a) said parties have not become reconciled; (b) said parties have not lived or cohabited together; . . ."