Buck v. Buck

This is an appeal by plaintiff from an order denying the motion to vacate her default and to set aside the ensuing decree of annulment.

The parties intermarried on July 31, 1952, and less than two months thereafter, on September 16, defendant husband herein filed an action for annulment on the ground that at all times after the marriage ceremony plaintiff herein refused to consummate said marriage or to live and cohabit with defendant as husband and wife. A reconciliation was

On February 20, 1953, plaintiff in the instant proceeding filed an action for separate maintenance on the ground of extreme cruelty, alleging that the date of separation was January 5,1953. On September 6 of the same year a child was born to plaintiff.

Defendant filed an answer to the last-mentioned complaint and also a cross-complaint for annulment on the ground of fraud, or in the alternative, a divorce on the ground of extreme cruelty.

Thereafter, on March 25, 1953, plaintiff and defendant, through their respective counsel, entered into a stipulation, as follows: “. . . that the complaint in the within action may be deemed to be withdrawn and that the cross-complaint on file herein may be heard as a default. ’ ’

Pursuant to the foregoing stipulation, the cause was set for hearing and on April 20, 1953, on the testimony of cross-complainant (defendant husband), a judgment of annulment was rendered. Thereafter, plaintiff discharged her attorneys and procured other counsel. On July 10, 1953, through her present counsel, plaintiff filed her motion to vacate the decree of annulment. After a hearing had upon affidavits and counter-affidavits, the motion was denied. From the order denying her said motion plaintiff prosecutes this appeal.

The only ground urged as a reason for reversal of the order in question is that the court abused its discretion in refusing to set aside the default decree of annulment.

Plaintiff’s Supporting Affidavit

In support of the motion, plaintiff presented her own affidavit in which she avers that she and her husband lived together as husband and wife from September 26, 1952, until January 5, 1953, “during all of which time the parties cohabited and affiant became pregnant. That on January 2, 1953 she conferred with her husband’s attorney and was advised that there could be no annulment of affiant’s marriage if she was with child.” That on January 9, 1953, at the request of her husband, she consulted a physician to

Dependant’s Counteeappidavit

After setting forth the filing of his original annulment action on September 16, 1952, and the successive separations and reconciliations of the parties, defendant avers “That during all of said time and from the beginning of the marriage of the parties, plaintiff on many occasions told your affiant, that the only reason she married him was to preserve her status in the United States as a desirable alien and to have affiant assist her in furnishing transportation and support for a minor child of plaintiff’s then and now residing in Argentina. ’ ’

Referring to plaintiff wife’s averments of reconciliation between them defendant husband avers that he refused such offers. He further stated, that “on a number of occasions plaintiff stated to your affiant that she was well aware of the nature of the annulment action filed by your affiant on or about March 5, 1953, and on several occasions plaintiff told your affiant she was returning to Argentina to rejoin her family.”

With reference to the occasion when plaintiff claims she first learned of the decree of annulment defendant avers that following the entry of such decree, “he visited plaintiff on or about April 25, 1953, for the purpose of informing her that the annulment had been granted; that when he so in

“That at said time plaintiff was not confused, hysterical or emotionally upset, but had completely resigned herself to the fact that she would return to her home in Argentina, or possibly to Peru; that affiant stated to plaintiff his desire to part from her as a friend, and in the event she needed any financial assistance upon the birth of a child, he would be helpful to the extent his finances would permit.”

Defendant’s attorney in his affidavit admits that plaintiff herein visited him in his office about January 2, 1953, but that he advised her he was representing her husband and that she should seek independent legal counsel; that at no time did he state to defendant, “that there could be no annulment of her marriage if she was with child.” Defendant’s attorney then avers that'subsequently he had conversations with plaintiff’s attorney who advised him that plaintiff “had approved a request for entry of dismissal of her complaint, and that he had filed the same.” That subsequently thereto, the formal stipulation above set forth was prepared, signed and filed.

We are not unmindful of the doctrine that the granting of relief under section 473 of the Code of Civil Procedure is primarily committed to the discretion of the trial court, but such decision must be founded upon a sound discretion, predicated upon a fair consideration of the evidence in its entirety and the reasonable and logical inferences to be drawn therefrom. And, in all cases, it must be founded upon the principles of justice and fair dealing.

As was said in Elms v. Elms, 72 Cal.App.2d 508 , 519 [ 164 P.2d 936 ] : “It is not a mental discretion but an impartial discretion guided by fixed legal principles ‘to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ (Brill v. Fox, 211 Cal. 739 , 743 [ 297 P. 25 ] ; Bailey v. Taaffe, 29 Cal. 422 , 424.) The burden of proving excusable neglect is upon the defendant who must establish his thesis by a preponderance of the evidence. (Bruskey v. Bruskey, 4 Cal.App.2d 472 , 479 [ 41 P.2d 203 ].) If from a scrutiny

This is an annulment proceeding and the principles which are applicable when a motion is made under section 473 of the Code of Civil Procedure to set aside a default judgment severing the marital status are concisely stated in Garcia v. Garcia, 105 Cal.App.2d 289 , 290 [ 233 P.2d 23 ], as follows: “ ‘As said in Rehfuss v. Rehfuss, 169 Cal. 86 , 92 [ 145 P. 1020 ] : “The rules of practice applicable to divorce actions differ in many respects from those which govern other actions. In an action for divorce, upon very slight showing the court will set aside a default, if application for relief be made in due time . . . The law is at all times very solicitous to preserve the integrity of the marriage relation. That relation is the basis of the family, the foundation of society . . . An action for divorce concerns not only the parties immediately interested, but also the state ... It is the duty of the court, representing the state, in accordance with the letter and policy of the law, to guard strictly against fraud, collusion, or imposition when the husband or wife seeks to dissolve the bonds that bind them together.” In Hambrick v. Hambrick, 77 Cal.App.2d 372 , 377 [ 175 P.2d 269 ], the court said: “As has been said repeatedly: ‘. . . An appellate court, owing to the remedial character of the statute and the policy of applying it liberally to permit an opportunity to present a substantial defense, listens more readily to an appeal from an order denying relief than to one granting relief . . .’ (14 Cal.Jur. 1076; see, also, Waybright v. Anderson, 200 Cal. 374 , 377 [ 253 P. 148 ], supra, and cases cited; Brill v. Fox, 211 Cal. 739 , 743-744 [ 297 P. 25 ]). Even in a case where the showing under section 473 is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application (14 Cal.Jur. p. 1076).” ’ (See also McBlain v. McBlain, 77 Cal. 507 , 509 [ 20 P. 61 ] ; Wadsworth v. Wadsworth, 81 Cal. 182 , 183 [ 22 P. 648 , 15 Am.St.Rep. 38 ]; Landon v. Landon, 74 Cal.App.2d 954 , 958 [ 169 P.2d 980 ].)” (See also Gregory v. Gregory, 92 Cal.App.2d 343 , 345 [ 206 P.2d 1122 ].)

It has been held that a default judgment by which a marriage is dissolved, property rights lost, character assailed and children of tender years taken from a parent, is a harsh judg

It is true, as respondent urges, that section 84 of the Civil Code legitimatizes children conceived or born before the judgment but in the instant case the judgment of annulment makes no mention of the child here in question, and so far as the record before us discloses, defendant father, upon information and belief, denies paternity of the child. We also search the annulment decree in vain for any support provision or order of custody as provided for in section 84 of the Civil Code.

It is true, as stated by respondent, that there was a stipulation for the entry of plaintiff’s default and that defendant’s cross-complaint might be heard as a default matter, but when consideration is given to the circumstances and plight of plaintiff, there is much to be said in favor of her contention that it was her understanding and belief that at the time of the last reconciliation of the parties, it was agreed that all actions between them were to be dismissed.

We are persuaded that under the circumstances surrounding this case any doubt as to whether the judgment of annulment should be set aside should be resolved in favor of the applicant for remedial relief. Having in mind the foregoing legal principles and the circumstances presented by the record herein, we are impressed that it was an abuse of discretion to deny the relief sought by plaintiff.

The order appealed from is reversed and the cause remanded with directions to the court below to vacate and set aside the judgment and to allow plaintiff to file an answer to defendant’s cross-complaint, if she be so advised, within a reasonable time.

Doran, J., and Drapeau, J., concurred.