Nealis v. Carlson

• Citation: 98 Cal.App.2d 65,219 P.2d 56
• Court: California Court of Appeals
• Decision Date: 12 June 1950
• Parties: NEALIS v. CARLSON (GUIDOTTI, Intervenor). Civ. 14222.

Page 56

219 P.2d 56

98 Cal.App.2d 65

NEALIS v. CARLSON (GUIDOTTI, Intervenor).

Civ. 14222.

District Court of Appeal, First District, Division 1, California.

June 12, 1950.

Robert E. Hatch, San Francisco, for appellant.

Erskine, Erskine & Tulley, San Francisco, for respondent.

PETERS, Presiding Justice.

This is an appeal from an order of the Superior Court denying a motion of the plaintiff to vacate a final decree of divorce on the ground that it was secured by fraud. After a hearing, the trial court denied the motion to vacate by a minute order dated October 2, 1947. There was no direction in the minute order that a formal order was to be later prepared. Thereafter, on October 30, 1947, the trial court filed a formal written order, complete with findings, denying the motion. The appeal was filed on November 24, 1947. Whichever order was the proper one from which to appeal, the notice of appeal was filed within the 60 days permitted by Rule 2(a) of the Rules on Appeal. In the interests of orderly procedure, however, it should be mentioned that under Rule 2(b)(2), where findings are not essential, and no reference is made in the minute order for the preparation of a formal order, the only appealable order is the minute order, and the formal order later filed is functus officio. Pessarra v. Pessarra, 80 Cal.App.2d 965, 183 P.2d 279.

The facts most favorable to respondent, as disclosed from the settled statement and clerk's transcript, are as follows:

The appellant, Edith C. Nealis, married Carl H. Nealis in December of 1917. The parties had two children. On June 9, 1927, Edith secured an interlocutory decree of divorce embodying the terms of a property settlement agreement under which Edith received all of the community property, custody of the children and an award of $150 per month as alimony and support for the children. On August 27, 1935, on the motion of the husband, the trial court entered a final decree of divorce which severed the marriage relationship and continued the property, custody, alimony and support provisions of the interlocutory. In support of the motion to have the final decree entered, Carl filed an affidavit in which, among other things, he averred that all of the requirements of the interlocutory 'have been fully complied with on the part of the moving party herein, and he is not in default in any thereof.' This averment was false, in that on that date Carl was in arrears in alimony and support payments in the total sum of $330. As a matter of fact, on that date there were pending two proceedings before the trial court growing out of the divorce. On April 3, 1935, Carl had filed a notice of motion to modify the judgment by reducing the $150 monthly award to $75. On August 16, 1935, Edith had filed an affidavit charging that her husband was $330 in arrears in his payments. Neither of these proceedings was ever passed upon by the court.

The appellant, the wife, had no actual notice of the entry of the final decree in 1935, although she admitted that she had heard rumors that it had been entered. She testified that she did not learn that the final decree had been entered until the death of Carl in 1946. She also testified that the arrearage existing in 1935 had never been paid. There is, however, most substantial evidence to the contrary. There is ample evidence to support the implied finding that after the entry of the final decree Carl made up all arrearages in the payment of alimony and support, continued to make all payments called for by the decree, and that he gave his children other substantial sums in excess of those provided for in the decree. There is in evidence three receipts for alimony and support signed by Edith, in which, as early as 1939, she acknowledged 'receipt of all monies [sic] due me under and by virtue of an interlocutory decree and final decree of divorce.' Thus, as early as 1939, Edith knew, and acknowledged she knew, that a final decree of divorce had been secured, and likewise admitted, in writing, that all payments due had been made.

After the divorce had become final, Carl, the husband, adopted the respondent to whom he left, by will, the major portion of his substantial estate. She has been permitted to intervene in this proceeding, and is the real respondent in interest. Carl died May 6, 1946. Over thirteen months later, and on June 28, 1947, Edith filed a notice of motion to vacate the final decree on the ground that it had been obtained by fraud on the part of Carl. This motion was denied, and this appeal taken.

It is Edith's theory that if she can have the final decree set aside, she will be entitled to one-half of the estate of Carl under section 201 of the Probate Code. She contends that since the final decree was obtained by the fraud of Carl practiced upon her and the Court, such decree must be vacated, and that any delay that occurred in enforcing her rights did not prejudicially affect Carl. It was the opinion of the trial court, as expressed in its formal findings contained in the abortive formal order of October 30, 1947, that, while Carl committed a fraud on both the Court and the wife, Edith was in no position to raise the point because she learned of the final decree in 1939 but took no steps to protect her rights until June of 1947. The Court expressly found that this constituted inexcusable laches.

It seems to be the thought of ap...