Beeler v. Beeler
| Citation | 268 P.2d 1074,124 Cal.App.2d 679 |
| Court | California Court of Appeals |
| Decision Date | 23 April 1954 |
| Parties | BEELER v. BEELER et al. Civ. 8387. |
Christin & Davis, Charles A. Christin, Leonard J. R. Davis, San Francisco, for appellant.
Price & Morony, by Grayson Price, Chico, for respondents.
This is an appeal by plaintiff from the final decree of divorce granted defendant, and from the subsequent order of the court denying plaintiff's motion to vacate said decree.
The record shows that on August 27, 1951, following a contested hearing, an interlocutory decree of divorce was entered in favor of plaintiff dissolving the marriage between plaintiff and defendant. Additionally the decree affirmed the property settlement agreement of the parties. On August 6, 1952, counsel for plaintiff filed with the court an affidavit signed by her wherein it was averred that she and defendant had effected a reconciliation and had continuously cohabited since the entry of the interlocutory decree. Following a rather lengthly statement of the facts in support of such allegation, the affidavit concluded with the request that the court deny and refuse to grant defendant a final decree upon the grounds set forth therein. However, no affirmative action by motion or otherwise was taken by plaintiff. On August 11, 1952, counsel for plaintiff wrote to the court calling attention to the affidavit which had been filed and asserting his understanding of the law to be that should defendant file the necessary affidavit required by Rule 20 of the Rules of the Superior Court, showing no cohabitation, 'you, as Judge, cannot grant a final decree of divorce until a hearing has been had on the merits of the issues presented by the two affidavits.' Thereafter on August 29, 1952, more than one year after entry of the interlocutory decree, the defendant filed two affidavits with the court. The first was in accordance with the requirement of Rule 20; the other denied specifically the allegations of plaintiff's prior affidavit and concluded with a prayer that the final decree be entered. Also filed at that time was a letter addressed to the court stating that said affidavit was designed to present defendant's opposition to the prior affidavit of plaintiff and her request for a hearing. It is admitted that although copies of this letter and the affidavits were mailed to counsel for plaintiff, such papers could not have reached him in time to answer thereto. The court, upon the conflicting affidavits before it, considered the matter and entered the final decree. In its order the court noted that it had considered all of the affidavits and the case generally as disclosed by record and proceedings. Shortly thereafter plaintiff filed notice of motion to vacate the final decree, and after a formal hearing thereon in open court said motion was denied. At that hearing the court again noted that it had before it the previously mentioned affidavits as well as additional affidavits filed by plaintiff in support of said motion to vacate. It should be noted that at no time subsequent to the entry of the interlocutory decree was there any motion to vacate or otherwise set aside said decree.
Plaintiff's counsel, in support of his contention that the entry of the final decree should be set aside and vacated, does not attack the sufficiency of the showing by defendant, nor contend that the order of the court otherwise lacks evidentiary support. The attack upon the decree appears to be that since the court at the time the final decree was entered had before it conflicting affidavits, it was thereby presented with a judicial question rather than a ministerial one, and hence it was the duty of the court to set the same for formal hearing. Secondly, it is contended that since the counter-affidavit of defendant was not served on counsel for plaintiff, plaintiff was thereby denied due process.
The pertinent portions of Section 132 of the Civil Code provide that one year after the entry of the interlocutory decree the court on motion of either party, or upon its own motion, may enter the final judgment granting the divorce. But if an appeal has been taken from the interlocutory decree or a motion for new trial made, then the final judgment shall not be entered until the same has been disposed of. Rule 20 of the Rules of the Superior Court requires the petitioning party to support his or...
To continue reading
Request your trial
-
Lockyer v. City and County of San Francisco
...is solely within the province of the Legislature, except as the same may be restricted by the Constitution." (Beeler v. Beeler (1954) 124 Cal.App.2d 679, 682, 268 P.2d 1074; see, e.g., Estate of DePasse (2002) 97 Cal.App.4th 92, 99, 118 Cal.Rptr.2d 143.) In view of the primacy of the Legisl......
-
In re Marriage Cases
...and County of San Francisco (2004) 33 Cal.4th 1055, 1074, 17 Cal.Rptr.3d 225, 95 P.3d 459, italics added, quoting Beeler v. Beeler (1954) 124 Cal.App.2d 679, 682, 268 P.2d 1074.) The majority feels free, indeed obliged, to defer to the legislative definition of marriage, and leave the matte......
-
Duncan, In re
...Fuqua v. Fuqua, 268 Ala. 127, 104 So.2d 925; McClure, on Behalf of Caruthers v. Donovan, 33 Cal.2d 717, 205 P.2d 17; Beeler v. Beeler, 124 Cal.App.2d 679, 268 P.2d 1074; Ladd v. Commonwealth, 313 Ky. 754, 233 S.W.2d 517; Henderson v. Henderson, 199 Md. 449, 87 A.2d 403. A state may declare ......
-
Estate of Depasse
...108, 113, 104 Cal. Rptr. 472.) The regulation of marriage is solely within the province of the Legislature. (Beeler v. Beeler (1954) 124 Cal. App.2d 679, 682, 268 P.2d 1074.) In view of the Legislature's role in regulating we begin by reviewing the statutes governing marriage in California.......