Waller v. Waller

The Issue of Reconciliation

Declarations under penalty of perjury were filed in support of, and in opposition to, the motion. Sharp conflicts—particularly on the issue of reconciliation—were raised by plaintiff’s declaration opposing the requested order. At the hearing of the motion, the only testimony given was that of plaintiff and her daughter, Dorothy Sheehan.

Plaintiff argues that “the evidence was overwhelming and undisputed that there was a reconciliation.” However, “[ljike oral testimony, it is the province of the trial judge, in considering affidavits, to determine the credibility of the affidavits, weigh their assertions and resolve any factual conflict created thereby.” (Mackie v. Mackie (1962) 208 Cal.App.2d 547 , 551-552 [ 25 Cal.Rptr. 336 ].) “In those cases where the issues are tried on affidavits, the rule on appeal is that the affidavits which favor the contentions of the prevailing party establish the facts stated therein, and all facts which reasonably may be inferred therefrom. . . . When there is a conflict in the facts presented by affidavits, the determination of those facts by the trial court will not be disturbed on appeal.” (Kern v. Kern, supra, 261 Cal.App.2d at p. 337.) Here, the trial court concluded that “after the Interlocutory Decree of Divorce was entered herein the parties did not effect a reconciliation.” The record supports the court’s determination.

After the entry of the interlocutory decree on January 30, 1963, plaintiff and John lived at separate addresses in the Sacramento area until September 1, 1963. During this interval, John visited plaintiff on some Sundays and on occasions they had lunch together. In an effort to save their marriage, and at the same time save their Sacramento marital home from repossession, plaintiff and John lived together in the family home from September 1, 1963, into November of that year, when they again separated. There was no evidence they had sexual relations during that period.

John moved to Texas in January 1964. He returned to Sacramento in November 1964 to attend the trial of a personal injury action brought by him against his former employer, the Southern Pacific Company, under the Federal Employers’ Liability Act. While in Sacramento for that purpose, he resided at a downtown hotel. .Plaintiff visited him at the hotel once accompanied by her daughter, and they had dinner with him. After the trial against the railroad, wherein he obtained judgment, John returned to Texas.

Though living separately, plaintiff and John filed married couple’s joint income tax returns in 1964, 1965, and 1966, in order to obtain a tax advantage. During 1966, John sent plaintiff a Southern Pacific railroad pass, in which plaintiff was described as “Wife of Train Dispatcher, Re

that there has been an unconditional forgiveness by the prevailing party. The mere passage of time during which the parties cohabit is not conclusive as to a permanent reconciliation. The controlling question is the actual finding of an intent to reconcile. Whether an agreement is an unconditional one of forgiveness, and therefore justifies the denial of the final decree, or is a conditional one, and therefore warrants the granting of the final decree, is a question of fact for the trial court. If the evidence, or the reasonable inferences therefrom is conflicting, the determination by the trial court is conclusive on the appellate court. (Kern v. Kern, supra, 261 Cal.App.2d at p. 331; Mackie v. Mackie, supra, 208 Cal.App.2d at pp. 550-551; Tompkins v. Tompkins (1962) 202 Cal.App.2d 55 , 58 [ 20 Cal.Rptr. 530 ]; Small v. Small (1954) 123 Cal.App.2d 870 , 874 [ 268 P.2d 63 ]; Nemer v. Nemer, supra, 117 Cal.App.2d at pp. 38-39.)

The Showing of “Mistake, Negligence or Inadvertence”

Before relief can be granted under Civil Code section 133, that section requires a showing that “by mistake, negligence or inadvertence” the final decree either has not been entered or, if previously entered, it was not entered as soon as it legally could have been. “In the absence of such a showing the court is without power to enter the final decree nunc pro tunc.” (Berry v. Berry (1956) 140 Cal.App.2d 50 , 59 [ 294 P.2d 757 ].) Plaintiff asserts there was no such evidence on the present motion.

Evidence alone that a party merely failed to apply for a final decree of divorce does not constitute mistake, negligence, or inadvertence, since “[flhere is no rule of law which compels a party to apply for a final decree and the circumstances may be such that a party does not wish to apply for one. Many factors may prompt inaction, i.e., there may have been a reconciliation or there may be hope of one.” (Berry v. Berry, supra, 140 Cal.App.2d at p. 60.)

In the case at bench, however, the trial court in written findings—as well as in its order directing nunc pro tunc entry—expressly found that “through inadvertence, mistake and excusable neglect on the part of . . . John F. Waller, no Final Decree of Divorce was entered prior to his death.” Evidence to support this finding is contained in the declaration under penalty of perjury executed and filed by respondent administratrix in support of her motion. That evidence consists primarily of a conclusionary recital, which is italicized in the context as follows: “That the parties have not reconciled since the entry of said Interlocutory Decree of Divorce and at all times have continued to live separate and apart from each other. That during the last years of his life ... JOHN F. WALLER was ill; since the action was brought by plaintiff herein and she pressed it he assumed that she would enter a Final Decree of Divorce; but she did not; that on or

about April 1, 1967 decedent contacted his attorney, Nathaniel S. Colley, esq., and ask[ed] whether such decree had been entered and was advised that it was not; he then instructed said attorney both by telephone and by letter to cause such decree to be entered. On April 10, 1967 [the date of John’s death] said attorney caused a form to be sent to decedent for his signature so that such Final Decree could be entered, but before it was signed and returned for filing and entry decedent died.” (Italics ours.)

Even though affidavits or declarations under -penalty of perjury contain hearsay or mere conclusions, they are competent evidence if received without objection or motion to strike. (Nalley’s Inc. v. Corona Processed Foods, Inc. (1966) 240 Cal.App.2d 948 , 951 [ 50 Cal.Rptr. 173 ]; Cope v. Cope (1964) 230 Cal.App.2d 218 , 233 [ 40 Cal.Rptr. 917 ]; Falk v. Falk (1941) 48 Cal.App.2d 780 , 789 [ 120 P.2d 724 ].) Plaintiff contends, however, that “[t]he affidavits which were submitted with the motion were objected to” by her and that “the Court did not admit or receive into evidence the affidavits of the administratrix, or one of a Dorothy Sowers [John’s sister].” Her contentions are not supported by the record on appeal.

The. hearing on respondent’s motion required parts of two days. The proceedings of the second day come before us in a reporter’s transcript. The proceedings on the first day were not reported but are summarized in an engrossed settled statement. (Cal. Rules of Court, rule 7.) Neither the clerk’s and reporter’s transcripts, nor the settled statement, show that plaintiff objected to or moved to strike any portion of respondent’s declaration or, for that matter, the declaration of Dorothy Sowers, which was also filed in support of the motion. Similarly, the record on appeal contains no ruling by the trial court excluding either of those declarations. (See, Campbell v. Genshlea (1919) 180 Cal. 213 , 220 [ 180 P. 336 ]; Witkin, Cal. Evidence (2d ed. 1966), § 1302, p. 1205.) Although plaintiff’s objections to proposed findings of fact asserted that she had objected to respondent’s declaration at the hearing, plaintiff submitted to the trial judge two proposed settled statements which refer to objections having been made only to the Sowers declaration. We are bound by the contents of the engrossed settled statement as well as the two transcripts and, since no objection to either declaration appears of record, we must assume that plaintiff made none. (Burns v. Brown (1946) 27 Cal.2d 631 , 636 [ 166 P.2d 1 ]; People ex rel. Dept. of Public Works v. Bond (1964) 231 Cal. App.2d 435 , 437 [ 41 Cal.Rptr. 900 , 13 A.L.R.3d 1142 ]; People v. Keligian (1960) 182 Cal.App.2d 771 , 774 [ 6 Cal.Rptr. 680 ]; St. George v. Superior Court (1949) 93 Cal.App.2d 815 [ 209 P.2d 823 ]; 3 Witkin, Cal. Procedure (1954), Appeal, §§ 141-143, pp. 2319-2324.)

Although at the hearing the court stated it had read the Sowers declara

App.2d 795 , 797-798 [ 129 P.2d 935 ]; cf. Estate of Wilson, supra, 116 Cal.App.2d at pp. 527-528 and cases therein cited.) The averment in respondent’s declaration that John F. Waller assumed that plaintiff would “enter” a final decree lends substantial support to the court’s finding that “through inadvert anee [szc], mistake and excusable neglect” on John’s part no final decree was entered prior to his death. (See, Nemer v. Nemer, supra, 117 Cal.App.2d at p. 39; Hull v. Hull (1951) 102 Cal.App.2d 382 , 384 [ 227 P.2d 546 ].)

Application of Civil Code Section 133

Plaintiff argues that section 133 may be applied only where there is an “overriding equity,” which she insists will be found only where the granting of the motion will validate a subsequent marriage or establish the legitimacy of children. We reject the contention.

Although the Supreme Court has recognized that the Legislature, by enacting section 133, “intended to emphasize [italics ours] the retroactive effect of a nunc pro tunc order only in certain areas [i.e., to validate a subsequent marriage],” the court expressly reserved the question whether the statute was intended to serve other purposes. (Adoption of Graham (1962) 58 Cal.2d 899 , 904 [ 27 Cal.Rptr. 163 , 377 P.2d 275 ].)

The reservation of the Graham decision has in turn been recognized by the Courts of Appeal. In Price v. Price (1966) 242 Cal.App.2d 705 , 709-710 [ 51 Cal.Rptr. 699 ], the court refused to limit section 133 to cases where a later marriage would be thereby validated, and said, “We see no reason why the law as stated in section 133 of the Civil Code should not apply to every situation which arises subsequent to the date of the nunc pro tunc divorce. It is inconceivable to us how a law of this kind could be held to apply to some situations and not to others. Generally speaking, a law enacted without qualification is necessarily universal in effect. Admittedly, this code section constitutes a statutory fiction, but upon its enactment it should be equally applicable to all situations, including, in our judgment, the present one [holding that the conclusive presumption of child legitimacy was not applicable after the nunc pro tunc date of the final decree].” (See also, Berry v. Berry, supra, 140 Cal.App.2d at p. 60, stating that a spouse had a vested right in community property acquired subsequent to the entry of the interlocutory decree and that such right could not be divested by entry of the final decree nunc pro tunc “without” a showing of mistake, negligence, or inadvertence.)

In Kern v. Kern, supra, 261 Cal.App.2d 325 , there were no children to be legitimated and no subsequent marriage to be validated. Nevertheless, the appellate court upheld a nunc pro tunc final decree which antedated

the death of a mentally incompetent plaintiff wife and which was obtained on motion of the administrator of her estate on the ground that her conservator was inadvertent in failing to seek the final decree at an earlier time when such final judgment could have been entered.

But—plaintiff says—the effect of the court’s order in the present case is to divest her of a right of inheritance. It has been said that “[wjhile section 133 of the Civil Code is to be liberally construed to effectuate its object, its operation may not destroy a vested right.” (Adoption of Graham, supra, 58 Cal.2d at p. 904.) The statement from Graham must be read, however, in the light of the facts there presented. It was there held that parental relinquishments on file with the State Department of Social Welfare —valid when executed—could not be defeated at the behest of petitioners in an independent adoption proceeding by the expedient of nunc pro tunc entry of a final decree of divorce. A controlling element in the decision was the provision of Civil Code section 224m to the effect that the “relinquishment authorized by this section ... is final and binding and may be rescinded only by the mutual consent of the adoption agency [which did not consent] and the parent or parents relinquishing the child.” (Id. at p. 905.)

Unlike Graham, we are not dealing here with a right which the Legislature has declared may not be divested. (Civ. Code, § 224m.) We adhere, therefore, to the settled rule which authorized the court to enter the final decree herein antedating the death of defendant. (See, Kern v. Kern, supra, 261 Cal.App.2d at pp. 332-333; Hamrick v. Hamrick (1953) 119 Cal.App.2d 839 [ 260 P.2d 188 ]; Hull v. Hull, supra, 102 Cal.App.2d 382 ; Estate of Hughes (1947) 80 Cal.App.2d 550 [ 182 P.2d 253 ].) In each of the last-cited cases, “vested” rights of inheritance were necessarily or inferentially divested by the action of the court.

The appeal from the order granting respondent’s motion for entry of the final decree of divorce nunc pro tunc is dismissed. The judgment is affirmed.

Pierce, P. J., and Friedman, J., concurred.