Blair v. Pansy v. Blair

• Decision Date: 14 December 1936
• Docket Number: Civil 3759
• Citation: 62 P.2d 1321,48 Ariz. 501
• Parties: CLINTON C. BLAIR, Appellant, v. PANSY WILMA BLAIR, Appellee
• Court: Arizona Supreme Court

62 P.2d 1321

48 Ariz. 501

CLINTON C. BLAIR, Appellant, v. PANSY WILMA BLAIR, Appellee

Civil No. 3759

Supreme Court of Arizona

December 14, 1936

APPEAL from an order of the Superior Court of the County of Navajo. P. J. Clark, Judge. Order affirmed.

Mr. W E. Ferguson and Mr. John L. Sweeney, for Appellant.

Mr. Guy Axline, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an appeal from an order of the Superior Court of Navajo County, setting aside a certain judgment of said court. The facts necessary for determination of the case may be stated as follows: Clinton C. Blair, hereinafter called plaintiff brought suit against Pansy Wilma Blair, his wife, hereinafter called defendant, for divorce. The complaint set up the usual formal matters, and alleged that there were three children the issue of the marriage, aged respectively seven, twelve and fourteen years, but that they were at that time with defendant in Atchison, Kansas. It then continued as follows:

"That the plaintiff defendant are not the owners of any community property; that plaintiff is willing that the defendant may have the custody of said children during her good behavior and is willing to pay defendant Fifty Dollars per month for the support of herself and said children as long as able to do so."

The ground upon which the divorce was sought was habitual intoxication and extreme cruelty, which was set forth in some detail in the complaint. Service was made on the defendant by registered mail, in Atchison, Kansas, on May 20, 1935. In the letter which accompanied the copy of the summons and the complaint, as aforesaid, was a request by counsel for plaintiff that the defendant accept service as though made in Arizona and waive a time for answering the complaint. This, however, she declined to do, and her attorney in Atchison wrote to counsel for plaintiff as follows:

"I note from your petition that the plaintiff is willing to pay $50.00 per month for the support of the defendant and her children as long as he is able to do so. Mrs. Blair informs me her husband is Chief of Police at Winslow and is making approximately $200.00 per month; that one of her children has leakage of the heart; that one child is in high school and one in the seventh grade and that she cannot raise her children on $50.00 per month. If Mr. Blair is willing to pay $75 per month for the support of these children and $25 attorney fee, then Mrs. Blair will sign a stipulation to the effect that in case divorce is granted to Mr. Blair that there be paid to her for the support of her children $75 per month and that there be further paid $25 to me as attorney for Mrs. Blair."

Counsel for plaintiff answered this letter somewhat in detail, stating, among other things:

"However, you can assure Mrs. Blair that her husband wishes to be just as fair as he can but doesn't feel that a Court Order should be entered for more than $50.00 per month and he believes in her location, in case of a pinch, she should be able to get along on that amount because the children are all old enough that in case of a pinch she should be able to help some herself.

"I believe that she can rely on his doing his best in the way of finances not in excess of the $50.00, which we will request the Court to enter in the decree for her. And as long as she conducts herself properly she may retain the custody of the children, or Mr. Blair is willing to take them and maintain them to the best of his ability, in which event, application could be made to the court to modify the decree as to alimony."

Relying upon the allegations of the complaint above quoted and this correspondence, defendant made no appearance and entered no answer in the case. Default was entered on the 5th day of August, and on the 12th a decree of divorce was rendered in the following language:

"It is therefore hereby ordered, adjudged and decreed that the bonds of matrimony heretofore and now existing between the plaintiff and defendant be forever dissolved and held for naught; that the plaintiff and defendant each be restored to the status of single persons."

No provisions whatever were made in the decree in regard to alimony or the custody of the children. Shortly thereafter, defendant learned of the decree, and filed a motion to set aside the judgment. There were several grounds contained therein, but the one on which the court based its order was that her failure to answer was the result of inadvertence and excusable neglect. In its decision, the trial court said, in substance, that defendant had understood and had the right to understand if she did not answer, the decree of divorce would contain a provision allowing her $50 a month and the custody of the minor children during good behavior, and the fact that judgment was not entered in accordance with this understanding justified the setting aside of the decree.

There are six assignments of error, but in view of the reason given by the trial court for its action, we think we need consider only the question of whether her failure to answer was caused by excusable neglect. Section 3859, Revised Code of 1928, reads as follows:

"When judgment may be vacated or modified. The court may, any time within six months after the making or entry of any judgment, order or other proceeding, relieve a party from any such judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; or may, for good cause shown, modify or set aside its judgments, orders or proceedings."

We have held that this section applies to judgments in divorce actions. Crook v. Crook, 19 Ariz. 448, 170 P. 280. It would certainly seem that when a defendant is given to understand by plaintiff that a decree containing certain specific provisions, which appear in the complaint will be asked for and entered if she does not appear and contest the action, that it would be wholly unjust for plaintiff, after defendant has acquiesced in his suggestion on these grounds, to proceed to obtain a judgment which did not contain the provisions agreed upon, especially when so important and delicate a matter as the custody of children and support for them is involved. Indeed, the only even plausible argument which plaintiff attempts to make against this suggestion is (a) that the motion to set aside the judgment was not made within the statutory time, and (b) that the court was without jurisdiction to enter a judgment of the kind which plaintiff had promised defendant...