Turley v. Turley

FOX, J.* This is an appeal from an order of the superior court denying defendant’s motion to vacate his default and set aside the interlocutory judgment of divorce and for permission to file his answer. The question presented is whether the court abused its discretion in denying defendant’s motion. Plaintiff filed a verified complaint for divorce in December 1964. Subsequently, there was a conditional reconciliation between plaintiff and defendant based upon defendant’s promise to refrain from the excessive use of alcoholic bever[171]ages and upon his promise to seek professional assistance with his drinking problem. On March 17,1966, plaintiff and defendant again separated. On that occasion plaintiff advised defendant that she was going to resume prosecution of her pending action for divorce. She further advised defendant that she had retained Marvin Gayle as her attorney and that she had instructed Mr. Gayle to proceed with the litigation on her behalf.

On March 24, 1966, defendant called Marvin Gayle and told Mr. Gayle that he did not desire to contest the divorce action and requested Mr. Gayle to prepare a property settlement agreement giving to plaintiff all of the community property of the parties. The parties have one minor child, a girl four years of age. Defendant also advised Mr. Gayle that he did not wish his wife to work and therefore desired to pay such sums for alimony and child support as would be necessary to relieve his wife of the necessity to work during the minority of the child. Mr. Gayle urged defendant to obtain his own attorney. Defendant stated that he did not believe this was necessary. He agreed to come to Mr. Gayle’s office the next day to execute the documents necessary to carry out his intentions. During this conversation defendant declined to give Mr. Gayle either his address or his telephone number. Defendant failed, however, to appear at Mr. Gayle’s office the next day.

Approximately 25 days elapsed without any further communication from defendant, so on April 18, a request for entry of defendant’s default was filed.

On April 19, Mr. Gayle received a telephone call from Mr. Victor Dobrin, who stated that he represented defendant. Mr. Dobrin was advised by Mr. Gayle that he had already requested entry of the default of defendant. Mr. Dobrin was further advised that defendant’s default would not be withdrawn voluntarily in view of the dilatory tactics on the part of the defendant. No further communication was had from either defendant or his attorney until May 10, at which time Dobrin was advised the case had been set for hearing as a default on May 13. When the case was called for trial, the court, after being advised of the foregoing facts, proceeded with the hearing and rendered an interlocutory decree of divorce which was entered on May 20, 1966. On June 2, defendant filed his notice of motion to vacate the default and set aside the interlocutory judgment and for permission to file his answer. Said motion was made on the ground that the judg