Benito v. Benito

COUGHLIN, J. The plaintiff and defendant are husband and wife, respectively. Preliminary to the institution of a divorce action by the former against the latter, the parties conferred about the same; discussed a division of their property ; agreed upon the terms of a property settlement agreement ; and also agreed upon a provision for the payment of alimony. Thereafter, a complaint was filed; the defendant made a written appearance; stipulated that her default be taken; and, in due course, an interlocutory judgment of divorce was entered which decreed that the plaintiff was entitled to a divorce, approved the property settlement agreement as made, and ordered the plaintiff to pay the defendant $70 per month alimony, subject to further order of the court in the premises. The defendant wife was not represented by an attorney; claims that she wanted to effect a reconciliation with her husband, and in discussing this matter with his attorney was told that “he [the attorney] couldn’t be positive but he was almost sure that if defendant would go along with the plaintiff and not antagonize him and the property settlement agreement were executed and the interlocutory decree pushed through, plaintiff would start to relax and unwind and come back to the defendant”; also claims that the property settlement agreement was unfair in that it did not effect an equal division of the property; and states that since obtaining the interlocutory decree of divorce the plaintiff has indicated that he does not intend to effect a reconciliation.

Within the six-month period prescribed by section 473 of the Code of Civil Procedure, the defendant moved to set aside her default and the interlocutory judgment upon the ground that they were entered “by reason of fraud, actual and constructive, practiced upon defendant by plaintiff and through the mistake, inadvertence and excusable neglect of defendant induced by words and conduct of plaintiff and his said attorney, defendant being without independent counsel and advice [267]concerning the matter.” The motion was heard upon affidavits and a transcript of the testimony admitted upon the hearing preceding entry of the interlocutory judgment, and was denied. The defendant appeals, contending that the order of denial constituted an abuse of discretion.

“A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal.” (Coyne v. Krempels, 36 Cal.2d 257, 263 [223 P.2d 244] ; Gudarov v. Hadjieff, 38 Cal.2d 412, 418 [240 P.2d 621]; Couser v. Couser, 125 Cal.App.2d 475,477 [270 P.2d 496].)