Paulekas v. Paulekas
| Decision Date | 27 March 1953 |
| Citation | 117 Cal.App.2d 73,254 P.2d 941 |
| Parties | PAULEKAS v. PAULEKAS. Civ. 18674. |
| Court | California Court of Appeals Court of Appeals |
Vito A. Paulekas, in propria persona.
Mendel H. Lieberman, Los Angeles, for respondent.
In this action for separate maintenance, appellant was by the judgment required to pay monthly to his wife for the support of herself and two children $175; also, bills for their medical and dental care. Additionally, she was awarded the home, the movable property where the couple had lived and the savings bank accounts in her name.
On receipt of notice of the decree, appellant moved promptly under section 473 of the Code of Civil Procedure to set aside the several defaults that had been entered against him and the judgment on the grounds of his inadvertence, surprise and excusable neglect. He submitted with his motion an answer and a cross-complaint and now comments that his 'affidavit reveals that he has a good and sufficient defense to plaintiff's cause of action and * * * a good and sufficient cause of action for divorce in his own right.' In his affidavit he averred that he and Mr. Lieberman, his wife's attorney, were close friends; that he 'relied on' that attorney to protect appellant's interests; that all papers directed to him were served in the attorney's office and with one exception by the attorney; that the latter never told appellant at any time the action had been changed from a divorce suit to an action for separate maintenance; that appellant did not know the difference between a cause for divorce and one for separate maintenance until after the decree had been entered and at all times thought he was being sued for divorce; that the attorney never explained to him that he was required to file an answer. He averred that he did not consult an attorney until twelve days after the judgment but at all times relied upon Mr. Lieberman 'as my friend to protect my interests'; that on February 27, 1950, he appeared in court when he was ordered to make certain payments; that Lieberman then told him there would be a subsequent trial of which appellant would be notified, but the attorney did not explain that appellant was required to file an answer; that 'I relied upon Lieberman's friendship to protect me.' He sets forth that on April 3, 1950 at Lieberman's office he was served with 'amended summons and amended complaint' but nothing was said to the effect that this changed the divorce action to one for maintenance. He cites the salutation, 'Dear Vito' and the familiarity of subscribing his communications 'Mendel,' as proof of the friendship on which he was entitled to rely.
However, the averments of appellant were on all material points either controverted or explained by the affidavits of Mr. Lieberman and of Mrs. Paulekas. He was told after the first hearing that Mr. Lieberman would set the case for trial and if the judge believed respondent, she would obtain judgment; 'you won't have a right to do or say anything because you are letting Margaret take judgment without a contest.' The averments continue: appellant is He was told that if he wished a trial he must file an answer within ten days or get a lawyer to do so. He replied that he preferred not to contest the matter, but he
When Mr. Lieberman told him that if he desired to contest the case he should file an answer, appellant stated his preference for the court to determine the amount Margaret should be paid. Therefore, they both attended the hearing on February 27, 1950, and thereafter Lieberman told him that since appellant was not contesting the case he would not be privileged to say a word at the trial.
On March 28, 1950 respondent had her counsel file an amended complaint demanding separate maintenance only. By telephone the lawyer requested appellant to call to be served with the new pleading and save some expense. Pursuant to promise appellant called on April 3. At the time service was made, Lieberman stated that the original complaint was for divorce but that the amended pleading was different as shown by the prayer. The lawyer then instructed appellant to read the entire amended complaint to see the differences and to 'answer within the next ten days if you want to have a contest and a trial.' Default was duly entered on April 17 and on the day fixed for trial the case went off calendar because of the birth of the second child. That event necessitated the filing of a supplemental complaint. The attorney then advised appellant that the latter was not required to be at any court session until he had been served with notice of the decree. The supplemental complaint was forwarded to appellant on June 1, 1950. Subsequently, he called at Lieberman's office and was served with the latest pleading. His default on the supplemental complaint having been duly entered, a trial was had on August 2, 1950. Six days later, appellant called on Lieberman and was served with a copy of the decree. He thereupon read the decree and stated that he had no questions; that he understood it fully but 'of course' he would not make these payments; that if he paid as much as he could 'they can't do anything to me.' He expressed no 'anger, surprise, doubt or bewilderment.' He thanked the lawyer 'for...
To continue reading
Request your trial
-
Griffith Co. v. San Diego College for Women
...Jones v. Lindsey, 114 Cal.App.2d 237, 239, 250 P.2d 153; Schreiber v. Hooker, 114 Cal.App.2d 634, 640, 251 P.2d 55; Paulekas v. Paulekas, 117 Cal.App.2d 73, 77, 254 P.2d 941. When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the pre......
-
Davis v. Thayer
...its allegations he was guilty of careless and indifferent conduct. In either event relief should be denied. (Paulekas v. Paulekas (1953) 117 Cal.App.2d 73, 77, 254 P.2d 941; Caton v. Caton (1955) 131 Cal.App.2d 451, 458-459, 280 P.2d 876. See also, Martin v. Johnson (1979) 88 Cal.App.3d 595......
-
Griffith Co. v. San Diego College for Women
...Jones v. Lindsey, 114 Cal.App.2d 237, 239, 250 P.2d 153; Schreiber v. Hooker, 114 Cal.App.2d 634, 640, 251 P.2d 55; Paulekas v. Paulekas, 117 Cal.App.2d 73, 77, 254 P.2d 941. When an issue is tried on affidavits, the rule on appeal is that those affidavits favoring the contention of the pre......
-
Bonelli v. Chandler
...251 P.2d 707, 708; Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 508, 289 P.2d 476, 47 A.L.R.2d 1349; Paulekas v. Paulekas, 117 Cal.App.2d 73, 77, 254 P.2d 941. The Affidavit of John N. Cramer, filed with defendants' notice of motion, wherein he recited the status of the actio......