Fayad v. Fayad

ROTH, J. On October 25, 1962, a default judgment of divorce was entered against appellant. The decree divided the [681]community property of the parties,1 ordered the appellant to pay one dollar a month alimony, and awarded the custody of the two minor children to the respondent.

On November 7, 1962, appellant, pursuant to Code of Civil Procedure, section 473, moved for an order to set aside the default,' for an order vacating the judgment, and for an order granting leave to file an answer and cross-complaint. A proposed verified answer and cross-complaint and points and authorities and the declaration of the appellant in support of his motion were also filed at this time. The motion was denied, November 20,1962.

On December 27, 1962, appellant moved for reconsideration of the order of November 20. This motion was supported by all the documents used on the original motion and by additional points and authorities. It was denied on January 17, 1963.

The appeal is from the minute order of November 20, 1962, and the minute order of January 17,1963.

Appellant’s declaration admitted service of a copy of the summons and complaint but urges that the default be set aside because the parties, after the complaint was filed on August 15, 1962, continued to live together as man and wife to and through October 25, 1962, and that during that period, when appellant asked how the divorce proceedings were coming along, the respondent answered: “let’s try and see if we can get back together again, and if we can’t make a go of it, we will go back to Court,’’ and specifically that on the weekend of October 7, the parties, for the purpose of cementing their reconciliation, went to a hotel in Monterey, registered as husband and wife in the same room and had sexual relations. Appellant urges that these facts are sufficient to show mistake, inadvertence, surprise and excusable neglect under section 473 of the Code of Civil Procedure.

Respondent’s opposing declaration denied any reconciliation; denied any sexual relations with the appellant subsequent to the filing of the complaint, but omits any denial of spending the weekend with appellant in Monterey; denies that she had told Mm the divorce proceedings had been dropped; and declared that the appellant had adequate no[682]