Simmons v. Simmons

Opinion

CALDECOTT, P. J. The principal issue presented by this appeal is whether Code of Civil Procedure section 632 as amended, grants a party the right to findings of fact on an order made after the granting or denial of a motion.

[835]This appeal is from an order made on November 13, 1973, denying appellant’s motion to vacate a previous order1 (of Sept. 11, 1973), modifying spousal support and for attorneys’ fees. The appellant’s motion was to vacate the order of September 11 and to require the filing of findings of fact and conclusions of law which through inadvertence appellant had not requested.

I

Respondent initially argues that the order denying appellant’s motion to vacate the judgment is not appealable. He bases this argument on Mather v. Mather, 22 Cal.2d 713 [140 P.2d 808], There, in dismissing that part of an appeal from an order denying a motion to set aside the judgment, the court held: “As to the order denying the motion to vacate the judgment, under the settled law of this state an appeal will not lie from such order if the grounds upon which the moving party sought to have the judgment vacated existed before the entry of the judgment and were available on appeal therefrom.” (Id., at p. 720.)

Respondent contends that in the instant case the grounds upon which appellant sought to have the order vacated existed before the entry of the order on September 11, 1973; to wit, the trial court’s failure to make findings of fact and conclusions of law prior to the entry of the order and appellant’s attorneys’ failure to request findings prior to the entry of the order. He reasons that under the authority of Mather v. Mather, supra, the order denying appellant’s motion to vacate the judgment is not appealable.

While respondent correctly states the general rule (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 91, p. 4098), he neglects to accord due consideration to the so-called statutory rule. The relief sought by appellant below was pursuant to Code of Civil Procedure section 473 which allows relief “from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” By the terms of appellant’s motion to vacate, “inadvertence” was specifically alleged. Thus, the fact that appellant’s motion was not specifically denominated as one made pursuant to section 473 should not militate against it being treated as one under that section (Dingwall v. Anderson, 271 Cal.App.2d 658 [76 Cal.Rptr. 827]).