Baker v. Baker

FOURT, J. —Robert L. Baker appeals from the interlocutory judgment of divorce granted to his wife upon his default and from the court’s order denying his motion to set aside that judgment.

Anna G. and Robert L. Baker were married in 1963 and on June 3, 1966, Anna filed a complaint'for divorce alleging, among other things, extreme cruelty on the part of Robert, and that there were no children. She requested neither support nor alimony, but she did allege the existence of community property including two automobiles and she disclosed that there was an interest in a single family residence in which she had “invested the sum of $2,300 of her separate funds.” She listed no community debts and prayed that the community property be distributed “pursuant to law and in such equitable manner as the Court deems proper” and further that her husband be ordered to repay to her the sum of $2,300 originally invested in the real property. The court awarded her certain personal property and ordered her husband to repay the $2 300 as requested, but made no disposition of the residence which was held in joint tenancy. ■

Although appellant was personally served on June 17, Í966; he failed to appear and the - interlocutory judgment was entered after a default hearing. On February 10, 1967', appel[205]lant moved the court to relieve him of the default upon the grounds of his mistake, inadvertence, surprise and excusable neglect: Although he specified no statutory authority, these are the grounds delineated under Code of Civil Procedure, section 473. Appellant declared in support of this motion that after he was served with summons and complaint he consulted his wife’s attorney who led him to believe that if he did not acquiesce in his wife’s demands prior to trial he would be entitled to a hearing on the merits and that the court had no jurisdiction to dispose of the family residence which was held in joint tenancy. He further declared in substance that he had received no notice of the default hearing, that he was not aware of the court’s authority to make certain property dispositions and that he was displeased with the property distribution in several respects.

Anna’s responding declaration, which was uncontradicted, pointed out that appellant had been personally served on June 17, 1966, that he had refused her offer of June 30, 1966, to accept as full consideration for the quitclaim of her interest in the real property a payment of only a portion of her loan to the community, and that her attorney on July 25, 1966, had written to appellant “If we are unable to reach settlement within the next five (5) days and you have not appeared in the action, your default will be taken and we shall proceed to trial. ’ ’