Marriage of Testa, In re
| Decision Date | 29 November 1983 |
| Citation | 196 Cal.Rptr. 780,149 Cal.App.3d 319 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re the MARRIAGE OF Anthony & Lorraine TESTA. Anthony D. TESTA, Appellant, v. Lorraine M. TESTA, Appellee. Civ. 25896. |
Husband appeals a judgment on bifurcated issues claiming the court erred in finding a prior judgment vacating an interlocutory order of divorce automatically vacated the parties' property settlement agreement.
Breaking up has not been easy for these parties. After unhappy differences arose in their seven-year marriage, wife signed a property settlement agreement on January 25, 1967. Five days later, husband filed for divorce. Wife was served in March and in April a default interlocutory judgment was granted in which the executed property settlement agreement was "approved and incorporated in this decree in all its terms and provisions by reference."
The final was entered in 1968. The family residence had been awarded to husband, but he allowed wife and the children to continue to reside in it 1 until 1974, when wife would not let husband in the house. He then filed an order to show cause for custody and to enforce his rights for entry to the residence. Wife countered with a motion to vacate the judgment of divorce. The parties reached an agreement and their respective motions were taken off calendar.
This was not a lasting resolution. Husband filed an unlawful detainer action to remove wife from the house and wife again moved to set aside the divorce decree. Her motion was granted, but the trial court's order omitted any mention of the property settlement agreement.
Husband refiled for a dissolution in 1979. The petition was granted and the other issues bifurcated. At the hearing on further issues, the court found the property settlement agreement had automatically been vacated with the interlocutory and final judgment of divorce, and refused to hear any evidence of its validity. 2 Husband contends the court erred and we agree.
Wife's 1977 motion asked the court to set aside the default "Interlocutory and Final Judgments of Divorce," claiming "they were obtained by fraud," she had not personally received "notice of the default hearing, the entry of the Interlocutory Decree nor the Final Decree," and her "husband lied when he said we had not had a reconciliation and were not living together." The court ruled "that the motion to set aside the default Interlocutory and Final Judgment is granted." The wife asked for the judgments to be set aside but she did not seek to set aside the property settlement agreement. The granting of the motion cannot be interpreted as giving more relief than requested.
In Olson v. Olson (1957) 148 Cal.App.2d 479, 306 P.2d 1036, the wife brought a Code of Civil Procedure section 473 motion to vacate the interlocutory decree of divorce. The trial court, in granting her motion, also canceled the spouse's executed property settlement agreement. The Olsons' agreement, like the Testas', was approved and incorporated into the interlocutory decree. Both agreements allowed the court's approval but did not depend on such approval. And like Mrs. Olson, wife here asked only to vacate the decrees, not the agreement. The Olson court found the trial court erred in setting aside the property settlement agreement. ...
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Marriage of McNeill, In re
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... ... 604, 177 Cal.Rptr. 520, fn. omitted.) ... 8 We decline to award sanctions to Wife, as requested, as they are not appropriate in this matter ... 9 Unlike In re Marriage of Testa (1983) 149 Cal.App.3d 319, 196 Cal.Rptr. 780, Wife's original motion in the trial court requested that the marital settlement agreement be set aside and requested that the interlocutory and final judgments be vacated ... 10 Husband contends that this issue cannot be decided on appeal because ... ...
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