Garibaldi v. Garibaldi

• Decision Date: 09 August 1957
• Citation: 314 P.2d 89,153 Cal.App.2d 170
• Court: California Court of Appeals
• Parties: Florene GARIBALDI, Plaintiff and Appellant, v. Jimmie GARIBALDI, Defendant and Respondent. Civ. 22072.

Page 89

314 P.2d 89

153 Cal.App.2d 170

Florene GARIBALDI, Plaintiff and Appellant, v. Jimmie GARIBALDI, Defendant and Respondent.

Civ. 22072.

District Court of Appeal, Second District, Division 3, California.

Aug. 9, 1957.

Hearing Denied Oct. 3, 1957.

Milton R. Gunter, Los Angeles, and John E. Crooks, Bellflower, for appellant.

Thomas A. Wood and Thomas S. Bunn, Los Angeles, for respondent. PARKER WOOD, Justice.

Plaintiff obtained an interlocutory judgment of divorce against defendant on August 29, 1951. A final judgment of divorce was entered on January 22, 1954, upon an ex parte motion made by defendant.

On March 2, 1956, plaintiff filed a notice of motion, and a motion, to vacate the final judgment upon the ground that it was procured by extrinsic fraud of defendant, in that, on January 19, 1954, defendant filed a false 'Affidavit for Final Judgment of Divorce,' which affidavit was known by defendant to be false and was filed with the intent to deceive and it did deceive the court; and defendant thereby obtained a judgment to which he was not entitled and which would not have been rendered except for said fraud.

Plaintiff appeals from the order denying her motion to vacate the final judgment.

Defendant's affidavit for final judgment was made upon a printed form of affidavit, which form, according to Rule 20 of Superior Court Rules (Judicial Council), he was required to use. Paragraph 2 of the printed form was, in part, as follows: '2. That since the granting of said interlocutory judgment, (a) said parties have not become reconciled; (b) said parties have not lived or cohabited together; (c) * * * (d) * * * (e) * * *.'

Appellant (plaintiff) contends that the statements in the affidavit that the parties have not become reconciled, and that 'said parties have not lived or cohabited together' were false.

At the hearing on the motion, defendant testified that on eight or nine occasions, after the interlocutory judgment was entered, appellant called him by telephone and insisted upon conversing with him; as a result of the telephone calls he went to her home or other place of meeting and took her in his automobile to various motels where they remained and talked for some time; on three of those occasions they had sexual intercourse; on several occasions after the interlocutory judgment he, appellant, their daughter Sandra, and appellant's daughter Sharon (of a prior marriage) went on overnight trips to beaches; soon after the entry of the interlocutory judgment, when defendant expressed his desire to take the daughters on a trip, appellant told him he would not be permitted to take them unless he also took appellant on the trip; in order to provide a wholesome companionship between the girls, without discord with their mother, he acceded to appellant's demands and permitted her to accompany them on that trip and subsequent trips; on one trip to a beach the four of them occupied the same motel room during the night; in 1953 he had business to transact in Reno and he took that opportunity to provide a vacation trip for the daughters, and in accordance with appellant's demand he also took appellant on the trip; while they were in Reno they stayed in two motels and in both the motels they had adjoining rooms; he and appellant did not occupy the same bed or have sexual intercourse during any of those trips; after the interlocutory judgment he and appellant did not have a common place of residence but each of them had a residence separate from the other; after the interlocutory judgment he never asked appellant to return as his wife; and there was no reconciliation between him and appellant.

Appellant testified that during the trip to Reno she took care of the girls while defendant attended to matters of business; defendant paid all the expenses of the trip and the family spent the evenings together; they were on the trip about three weeks and she and defendant slept in different beds; after the interlocutory judgment they had separate places of residence.

Sharon, the daughter of appellant by a prior marriage, testified that during the trips to the beaches she did not see appellant and defendant occupy the same bed; on one of the trips the four of them stayed in the same motel room during the night; the trip to Reno lasted about six weeks; on a number of occasions appellant accompanied defendant when he came to a school (where Sharon was a pupil) and took Sharon to appellant's residence for the weekend.

Mrs. Repetti testified that in 1953, at Reno, appellant told her that appellant had no intention of going back to defendant--no intention of effecting a reconciliation with him.

Appellant argues that the words 'have not * * * cohabited together,' used in defendant's affidavit, mean that the parties had not had an act of sexual intercourse. She also argues that the words 'have not lived * * * together,' used in the affidavit, should not be taken in a...