Testa v. Testa

Opinion

SONENSHINE, J. Husband appeals a judgment on bifurcated issues claiming the court erred in finding a prior judgment vacating an interlocutory order of divorce automatically vacated the parties’ property settlement agreement.

Breaking up has not been easy for these parties. After unhappy differences arose in their seven-year marriage, wife signed a property settlement agreement on January 25, 1967. Five days later, husband filed for divorce. Wife was served in March and in April a default interlocutory judgment was granted in which the executed property settlement agreement was “approved and incorporated in this decree in all its terms and provisions by reference.”

The final was entered in 1968. The family residence had been awarded to husband, but he allowed wife and the children to continue to reside in it1 until 1974, when wife would not let husband in the house. He then filed an order to show cause for custody and to enforce his rights for entry to the [321]residence. Wife countered with a motion to vacate the judgment of divorce. The parties reached an agreement and their respective motions were taken off calendar.

This was not a lasting resolution. Husband filed an unlawful detainer action to remove wife from the house and wife again moved to set aside the divorce decree. Her motion was granted, but the trial court’s order omitted any mention of the property settlement agreement.

Husband refiled for a dissolution in 1979. The petition was granted and the other issues bifurcated. At the hearing on further issues, the court found the property settlement agreement had automatically been vacated with the interlocutory and final judgment of divorce, and refused to hear any evidence of its validity.2 Husband contends the court erred and we agree.

Discussion

Wife’s 1977 motion asked the court to set aside the default “Interlocutory and Final Judgments of Divorce,” claiming “they were obtained by fraud,” she had not personally received “notice of the default hearing, the entry of the Interlocutory Decree nor the Final Decree,” and her “husband lied when he said we had not had a reconciliation and were not living together.” The court ruled “that the motion to set aside the default Interlocutory and Final Judgment is granted.” The wife asked for the judgments to be set aside but she did not seek to set aside the property settlement agreement. The granting of the motion cannot be interpreted as giving more relief than requested.