Ojena v. Ojena

• Decision Date: 16 October 1957
• Citation: 316 P.2d 414,154 Cal.App.2d 440
• Court: California Court of Appeals
• Parties: Paul P. OJENA, Plaintiff and Respondent, v. Fauniel OJENA, Defendant and Appellant. Civ. 5522, 5563.

Page 414

316 P.2d 414

154 Cal.App.2d 440

Paul P. OJENA, Plaintiff and Respondent, v.Fauniel OJENA, Defendant and Appellant.

Civ. 5522, 5563.

District Court of Appeal, Fourth District, California.

Oct. 16, 1957.

Rehearing Denied Nov. 14, 1957.

Hearing Denied Dec. 11, 1957.

Brock, Easton, Fleishman & Rykoff, Hollywood, for appellant.

John L. Roberts, Riverside, for respondent.

GRIFFIN, Justice.

After about two years of marital relationship, plaintiff and defendant both agreed that a divorce should be obtained.They also agreed to go to an attorney friend of defendant's family, who drew a property settlement agreement for them dated September 6, 1954, which both parties signed.

A complaint for divorce for cruelty was filed by plaintiff against his wife.The hearing on the default divorce proceeding was had before Judge Gabbert.Defendant remained outside the courthouse in her car pending the hearing.At that time plaintiff and his corroborating witness testified and plaintiff's counsel moved the court that the property agreement alleged in the complaint to have been executed between the parties be approved.By an amended order of September 27, 1954, it was approved.The record does not affirmatively show that the instrument itself was exhibited to the court.The interlocutory decree was granted but contains no reference to the property settlement agreement, its terms or the approval of it.Apparently the properties provided for therein were delivered by the parties to each other and bills of sale were executed.In conjunction with the separation and property settlement agreement plaintiff, after some dispute as to a prior note, subsequently agreed to execute his note for $1,500, payable to defendant at $100 per month as a division of their community property interest in a drugstore operated by plaintiff.He made all payments when due to defendant, who accepted the modified agreement.After the payment of $1,100 on the note defendant refused to accept the next payment of $100 due in October, 1955, and then filed in Los Angeles County an action for divorce against this plaintiff, claiming therein that there had been a reconciliation, and asked that the property settlement agreement be canceled.She also filed a notice in this action of such claimed reconciliation and asked that no final decree be entered except upon a hearing duly noticed.It was so ordered.On October 13, 1955, plaintiff gave such notice and filed affidavits in support of it, claiming there had been no reconciliation and that he had complied with all orders of the court.At that time counsel for defendant moved for an allowance of attorney's fees and costs in defending the motion.After full hearing on both motions the court granted plaintiff's motion to enter the final decree and denied defendant's motion for attorney's fees and costs.Defendant appealed from the final judgment and from the order mentioned.Thereafter, on March 22nd, defendant moved for an order granting defendant costs and attorney's fees on appeal, which was likewise denied and defendant appealed from this order.These separate appeals were consolidated.

Defendant first claims that the evidence conclusively shows a reconciliation of the parties.Defendant's own testimony in this respect justified the finding of the court that no reconciliation was in good faith established.Her statement is to the effect that several months after the interlocutory decree was entered she was employed part time in her husband's drugstore but lived in an apartment with her girl friend; that on one Saturday night plaintiff asked her to drive with him and she did so; that after some drinks she went to his home and had sexual intercourse with him and remained there overnight; that she cooked his breakfast on Sunday and remained that night and again engaged in such an act; that the next morning plaintiff took her to her own apartment and they had a fight about something and when he asked her to return to him as he had done before, she told him to 'go to Hell'.Plaintiff admits these particular acts and claims there was one other such act in an auto court.(She said she did not remember this occasion.)She said she never would agree to return and live with him in good faith as his wife although he solicited her to do so.Without further...