Ross v. Ross
| Decision Date | 03 September 1953 |
| Parties | ROSS v. ROSS. Civ. 4586. |
| Court | California Court of Appeals Court of Appeals |
Nottbusch & Nottbusch, San Diego, for appellant.
LeRoy Seckler, San Diego, for respondent.
This is an appeal from an order setting aside an interlocutory decree of divorce, and from an order substituting an attorney for the plaintiff.
The complaint, filed on May 23, 1952, alleged cruelty as the ground for a divorce. On June 4, the defendant filed an answer and a cross-complaint seeking a divorce on the same ground. On June 26, the court entered an order requiring the defendant to pay the plaintiff $20 per week for her maintenance. On June 30, notice that trial of the cause was set for July 30 was served on plaintiff's attorney.
The cause was called on July 30, the plaintiff not being present in court. Her attorney and the attorney for the defendant then stipulated that the case might be heard the next day as a default matter; that the defendant might then proceed on his cross-complaint; and that the decree should contain no provision for support for the plaintiff but should provide for her right to seek such support within a period of six months. An interlocutory decree was entered on July 31, 1952, in which the court, after referring to this stipulation, found the allegations of the cross-complaint to be true and that a divorce should be granted to the defendant. It was further decreed that the plaintiff was entitled to no support or maintenance, with the proviso that she should have the right to petition the court for such an allowance at any time within six months of the date of the decree.
On September 10, plaintiff's attorney secured an order to show cause why the interlocutory decree should not be modified, some of the grounds being that the plaintiff was ill and staying with relatives in the interior of Mexico at the time the decree was entered, and that at all times since she has been in ill health and unable to support herself. This application for modification of the decree was denied on October 3.
On October 14, a different attorney, appearing specially for that purpose, filed on behalf of the plaintiff a notice of motion to vacate the interlocutory judgment, with the affidavits of the plaintiff and of the attorney who represented her on the previous proceedings. On the same day an order to show cause was issued, and copies of the notice of motion, the order, and the affidavits were served on defendant's attorney. The grounds stated in the notice of motion were: that at the time the decree was entered the plaintiff was ill in Mexico; that she did not know that the cause had been set for trial; that her attorney entered into this stipulation without her knowledge or approval; that she had a valid cause of action for divorce and a valid defense to the cross-complaint; and that the default judgment was taken against her through the mistake, inadvertence, surprise or excusable neglect of herself and her attorney.
The attorney's affidavit stated that he attempted to contact the plaintiff on July 20, but was unable to locate her by July 29; that on July 29, he informed the attorney for the defendant that he would have to request a continuance; that defendant's attorney told him that the holders of trust deeds on certain property were threatening to foreclose, and that he would press for a hearing on July 30 in order to protect the interests of both parties; that the affiant entered into the stipulation believing that the plaintiff had abandoned her cause of action, and believing that her property interests would be best protected by a speedy termination of the litigation; that affiant left the state on August 1, and returned on September 1; that he then learned that the plaintiff had been ill in Mexico during the latter part of July, and because thereof had been unable to communicate with him; that when affiant sought to present evidence at the hearing of the order to show cause issued on September 10 the defendant's attorney objected on the ground that the court had no jurisdiction to award support money to the guilty party in a divorce action; and that said objection was sustained.
The plaintiff's affidavit stated, among other things, that she was in ill health at the time the order for support money was made on June 26; that the defendant did not comply with that order prior to July 18; that between those dates she was without funds to purchase food, and the untilities in her apartment were cut off; that on July 15, a relative purchased for her a ticket to Mexico where she secured food, lodging and medical care from relatives; that from the time she arrived in Mexico she was under a doctor's care and unable to communicate with her attorney; that when she left San Diego County she had not been notified that the cause had been set for trial; that she returned to San Diego in August and found that her attorney was away on vacation; that she later learned from her attorney that he had entered into this stipulation; that she did not know that the case...
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