Peterson v. Peterson

• Citation: 135 Cal.App.2d 812,288 P.2d 171
• Court: California Court of Appeals
• Decision Date: 03 October 1955
• Parties: Algot PETERSON, Plaintiff and Respondent v. Marcella PETERSON, Defendant and Appellant. Civ. 16432.

Page 171

288 P.2d 171

135 Cal.App.2d 812

Algot PETERSON, Plaintiff and Respondent v. Marcella PETERSON, Defendant and Appellant.

Civ. 16432.

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

Oct. 3, 1955.

As Corrected Oct. 25, 1955.

Hearing Denied Nov. 30, 1955.

Robert L. Bostick, Oakland, for appellant.

Dickey & Dickey, Alemeda, Harris, Darter & Older, Oakland, Guernsey Carson, San Francisco, of counsel, for respondent.

BRAY, Justice.

The superior court entered an order and judgment setting aside an order which vacated the final decree of divorce and restored said final decree to full force and effect.

Questions Presented.

1. Is false testimony a ground for relief under section 473, Code of Civil Prodedure?

2. Admissibility of evidence: (a) defendant's letters; (b) witnesses.

Record.

October 31, 1947, plaintiff husband obtained ex parte a final decree of divorce based upon the customary affidavit stating among other matters that the parties had not become reconciled. July 17, 1953, defendant brought suit for divorce against plaintiff alleging the same date of marriage as in the complaint in this action but giving the date of separation as July 16, 1953. (In the complaint herein the date of separation is August 5, 1946.) Claiming that she first learned of the entry of the final decree after service of summons in the second suit on the husband when his attorney notified her attorney thereof, and the latter informed her, she, on July 21, 1953, filed a notice of motion to set aside the final decree on the ground of the husband's fraud in concealing from the court the fact that plaintiff and defendant had become reconciled and were living together as man and wife for many weeks prior to and at the time of the entry of the final decree. After a hearing the court on September 14, 1953, found that there had been such reconciliation and entered an order setting aside the final decree. February 1, 1954, plaintiff, under section 473, Code of Civil Procedure, filed a petition to vacate the last mentioned order on the ground of defendant's fraud in falsely testifying that the parties had become reconciled and were living together, and on the ground of plaintiff's excusable neglect in failing to produce certain letters at the hearing of the motion to set aside the final decree. On the hearing of the petition the court found that defendant was guilty of fraud and that her testimony was wilfully false, without which her application to set aside the final decree would not have been granted, and that plaintiff's failure to produce the letters was excusable. It then vacated the order setting aside the final decree.

Evidence.

It is unnecessary to detail the evidence given on the hearing of the petition to vacate. Three letters written by defendant alone demonstrate that defendant's testimony on the hearing of the motion to set aside the final decree was false, in spite of her claim that she might have been mistaken but did not wilfully testify falsely. On the prior motion she had testified that she and plaintiff became reconciled in August, 1947, and lived together from then to July 16, 1953. (The date of the final decree obtained by plaintiff was October 31, 1947.) One letter was dated September 19, 1947, the second September 23rd, ¹ and the third October 16th. Each one discloses that while defendant was seeking a reconciliation and wanted plaintiff to take her 'back some day' plaintiff had refused to do so. In the last letter it appeared that plaintiff had even refused to let her talk to him on the phone. There had been some cohabitation between the parties but defendant's letter of September 23, 1947, shows conclusively that it was without intention, at least on the husband's part, and his attitude known to defendant, to reunite as husband and wife. As said in Estate of Abila, 32 Cal.2d 559, 561, 197 P.2d 10, 11: '* * * occasional cohabitation does not alone establish a reconciliation. Keller v. Keller, 122 Cal.App. 712, 715, 10 P.2d 541; Ruggles v. Bailey, 15 Cal.App.2d 555, 556, 59 P.2d 837. 'The problem is one of whether the parties have become so reconciled as to have fully resumed relations as man and wife with intention that they be permanent, obviating the necessity or desire for termination of marriage and making its continuance a matter of social propriety and probable success.' (Nelson on Divorce and Annulment [2d ed. V. 3], 135.)' The evidence here and particularly defendant's letters show that the parties had not become so reconciled. There was some conflict in the evidence at the hearing but as stated in Aldrich v. Aldrich, 203 Cal. 433, 264 P. 754, and in Tomb b. Tomb, 120 Cal.App. 438, 442, 7 P.2d 1104, the determination of controverted facts by the trial court will not be disturbed on appeal. Both cases pointed out, too, that the courts are always alert to detect and correct fraud.

1. Is False Testimony Ground for Relief?

Defendant contends that as the very issue before the court on the hearing of the motion to set aside the final decree was whether the parties had reconciled, the court's determination at that time that they had is res judicata of that issue for all purposes, and that false testimony then can give no ground for relief under section 473. While it is true that the court's judgment on the first motion would be res judicata as against a collateral attack, the attack here is a direct one on the judgment claimed to be res judicata. Potts v. Whitson, 52 Cal.App.2d 199, 208, 125 P.2d 947. That judgment is not final as against a direct attack. See 3 Witkin, California Procedure, 1934; Scott v. Dilks, 47 Cal.App.2d 207, 211, 117 P.2d 700. If based on intrinsic fraud it may be attacked under section 473. Thus cases like Norris v. San Mateo County Title Co., 37 Cal.2d 269, 237 P.2d 493, dealing with res judicata, are not in point.

It is not a question, as defendant claims it is, of new evidence to be used to relitigate an already litigated issue, but a question of whether on the litigation of that issue the court was imposed upon by the fraud of the prevailing party. Thus cases cited by defendant like Waer v. Waer, 189 Cal. 178, 207 P. 891, and In re Estate of Baird, 198 Cal. 490, 246 P. 324, to the effect that new evidence merely impeaching in its character is not sufficient to justify the granting of a new trial, are not applicable here.

'It is a well-recognized principle that a court of general jurisdiction has the inherent power to set aside a judgment obtained through fraud practiced upon the court. McKeever v. Superior Court, 85 Cal.App. 381, 259 P. 373; McGuinness v Superior Court, 196 Cal. 222, 237 P. 42, 45, 40 A.L.R. 1110.

'If the fraud is intrinsic and the time for appeal has expired, then the party seeking relief from such intrinsic fraud must, under the provisions of section 473 of the Code of Civil Procedure, make application for such relief within six months after judgment.' Tomb v. Tomb, supra, 120 Cal.App. 438, 441, 7 P.2d 1104, 1105.

In that case there was extrinsic as well as intrinsic fraud. The latter consisted of the husband's failure to inform the court, when he obtained an interlocutory decree of divorce, that the parties had become reconciled.

'There can be no question as to the inherent power of the court to set aside the final decree if obtained by fraud.' Miller v. Miller, 26 Cal.2d 119, 121, 156 P.2d 931, 932. There the husband obtained a final decree of divorce on an affidavit stating that he had fully complied with the terms of the interlocutory decree as to support, which statement was untrue. It should be pointed out that the relief obtained in this case by defendant in having the final decree set aside was based upon the alleged false representations of plaintiff to the court. In Security-First Nat. Bank v. Hauer, 47 Cal.App.2d 302, 117 P.2d 952, in obtaining a judgment the plaintiff concealed certain vital facts from the court. In upholding the trial court's action in setting aside the judgment the court said in 47 Cal.App.2d at pages 306-307, 117 P.2d at page 955: 'Where, as in the instant case, the motion to set aside the judgment on the ground of fraud is made under the provisions of section 473 of the Code of Civil Procedure, it is immaterial whether the fraud be extrinsic or intrinsic. In re Johnson, 7 Cal.App. 436, 94 P. 592.' See also Rice v. Rice, 93 Cal.App.2d 646, 651, 209 P.2d 662.

It is so...