Kronman v. Kronman

This is an appeal from an order of the court below setting aside the final decree of divorce in this action on the ground that the same was secured by fraud of the defendant.

The plaintiff obtained an interlocutory decree of divorce from defendant by default, on her complaint alleging extreme cruelty. This decree was entered August 3, 1927. Thereafter, on the twenty-sixth day of November, 1930, the plaintiff filed a second action for divorce upon the same grounds of cruelty as alleged in the case at bar, and in addition to the acts alleged in this case added an additional act of cruelty stated to have been committed November 4, 1930. No final decree of divorce had been entered in the case at bar at that time. Plaintiff in the second action procured an order to show cause directed to defendant, requiring him to show cause why he should not pay certain sums as alimony and attorney fees, which order was returnable December 11, 1930.

On the tenth day of December, 1930, the court at the request of the defendant made its final decree of divorce in the case at bar. The decree recited on its face that it was made by the court of its own motion, but it appears clearly by the record and in the affidavit of defendant himself that it was made at his request.

Plaintiff’s affidavit alleges that on or about July 28, 1928, before a year expired from the entry of the interlocutory decree, the parties resumed marital relations and lived together as husband and wife, as they formerly did, until on or about November 4, 1930, and in addition alleges that an allegation made by defendant in an affidavit filed in said second action, that the parties had not resumed marital relations nor entered into an agreement to do so, and that no reconciliation of any kind or character had been had or effected, was false and untrue.

The affidavit of Ethel Coleman, an acquaintance of both before their first divorce troubles, alleges that on or about the twenty-eighth day of July, 1928, the plaintiff returned to her husband, and from that time on they resumed marital relations and lived together as husband and wife, to affiant’s personal knowledge, up to the time defendant was arrested and put in jail, November' 4, 1930, and that during all of said time, from the latter part of July, 1928, up until November 4, 1930, the plaintiff and defendant, to the personal knowledge of affiant, occupied the same room, slept in the same bed, and otherwise conducted themselves as husband and wife.

The affidavit of Bessie Allen, a near neighbor, alleges that she helped plaintiff move back to where defendant Andrew Kronman was then residing, on July 28, 1928. Since that time affiant had personal knowledge that the

The affidavit of Cecelie Day alleges that she was a personal acquaintance for ten years and knew the parties very intimately, they having come to her home two or three times a week and on many occasions during that time they would stay all night; that since August 1, 1928, they visited affiant’s house on an average of two or three times a week and played cards and on many occasions they would play so late that Mr. and Mrs. Kronman would stay all night, and on each of these occasions they occupied the same room and otherwise conducted themselves as husband and wife, as they formerly did, and since August 1, 1928, up until the date of their last separation, November 4, 1930, the plaintiff and defendant had been living together and holding themselves out before the public as husband and wife.

The affidavit of Fred James and that of Charles West allege that they were acquaintances of both and that the parties lived together as husband and wife, and held themselves out to the public as such.

The defendant filed a counter-affidavit in which he sets forth that there was no reconciliation; that he was not restored to all marital rights, and that their living in the same place was a mere business arrangement to better care for the property of the parties. Defendant contends: (1) That the court had no jurisdiction to set aside the final decree on plaintiff’s motion; (2) that-the affidavits in support of plaintiff’s motion do not set forth facts showing a reconciliation of the parties and a full restoration of marital rights, but set forth only the conclusions and opinions of the persons making them.

There is no merit in the contention that the court had no jurisdiction to grant the motion. The court has inherent power to set aside a decree obtained by fraud, and its right to so act is not derived from section 473 of the Code of Civil Procedure, or limited thereby. (Williams v. Reed, 43 Cal. App. 425 [ 185 Pac. 515 ]; McGuinness v. Superior Court, 196 Cal. 222 [ 237 Pac. 42 , 40 A. L. R.

One of the important purposes of the law requiring one year to elapse between the entry of the interlocutory decree of divorce and the granting of the final decree is to give the spouses a chance to effect a reconciliation, which the law favors. (Olson v. Superior Court, 175 Cal. 250 [ 165 Pac. 706 , 1 A. L. R. 1589 ].) The obtaining of a final decree of divorce, after a reconciliation and resumption of marital relations subsequent to the entry of an interlocutory decree, without notice or knowledge of the other spouse, is extrinsic fraud, not only as to the other spouse, but also in so far as the court itself granting such decree is concerned, since it was effected through concealment from the court in an ex parte proceeding of facts which the party requesting the final decree is bound to disclose, and which if disclosed would have rendered improper the granting and impossible the procurement of the final decree, (McG uinness v. Superior Court, supra, at p. 230.)

“In the consideration of an appeal from an order made upon affidavits, involving the decision of a question of fact, this [appellate] court is bound by the same rule that controls it where oral testimony is presented for review. If there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established.” (Doak v. Bruson, 152 Cal. 17 [ 91 Pac. 1001 , 1002], and cases cited.) Therefore, if the affidavits in support of the motion state facts sufficient to establish there was a reconciliation between the parties and a resumption of marital relations, the judgment must be affirmed, and the fact that such facts were denied in defendant’s affidavit cannot be considered here. It is a general rule of evidence that a witness or affiant must state facts and not conclusions of fact or opinions. The probative facts must be set forth in an affidavit. It must appear from the facts stated that the ultimate fact may be inferred as true. (1 Cal. Jur. 669; People v. Yoakum, 5 3 Cal. 566 .)

“The line between a statement of fact accepted as evidential and a statement of conclusion of fact, insufficient

Whether the parties had become reconciled and resumed marital relations are the ultimate facts to be determined by the court, and not by the conclusion of the plaintiff and her witnesses, and if such affidavits contained nothing more than those statements of ultimate fact they would be insufficient to sustain the order. But the record and affidavits contain probative facts as follows: The parties had been married and lived together as husband and wife previous to the filing of the complaint in this action, and they had lived together, as they formerly did, from July 28, 1928, to November 4, 1930; during all that time they occupied the same room and slept in the same bed; their cohabitation was open and avowed and their friends and people at large were led to believe they were husband and wife, and they held themselves out to the world and deported themselves as such.

This is not a case of a single act of sexual intercourse, but a long-continued living together and cohabita

The affidavit contained sufficient probative facts to sustain the order, and the order appealed from is affirmed.

Knight, Acting P. J., and Cashin, J., concurred.