Sapp v. Superior Court of State, in and for Los Angeles County

• Decision Date: 11 August 1953
• Citation: 260 P.2d 119,119 Cal.App.2d 645
• Court: California Court of Appeals Court of Appeals
• Parties: . SAPP et al. v. SUPERIOR COURT OF STATE, IN AND FOR LOS ANGELES COUNTY. Civ. 19583, 19690. District Court of Appeal, Second District, Division 1, California

Page 119

260 P.2d 119

119 Cal.App.2d 645

SAPP v. SUPERIOR COURT OF STATE, IN AND FOR LOS ANGELES COUNTY.

SAPP et al. v. SUPERIOR COURT OF STATE, IN AND FOR LOS ANGELES COUNTY.

Civ. 19583, 19690.

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

Aug. 11, 1953.

Rehearing Denied Aug. 28, 1953.

Hearing Denied Oct. 8, 1953.

N. E. Youngblood, Beverly Hills, for petitioner-respondent Gertrude Sapp.

Lester M. Roth, Cohen & Roth, Beverly Hills, for petitioners Maxwell Sapp, David Sapp and Eva Sapp.

SCOTT, Justice pro tem.

Two proceedings herein are considered together. Although each is directed to the Superior Court as respondent, the real parties in interest are Gertrude Sapp and Maxwell Sapp. Gertrude Sapp seeks a writ of prohibition and Maxwell Sapp seeks a writ of mandate, both petitions relating to one case in the Superior Court which is the divorce case between the parties, being numbered No. 396,535 in that court.

From the record of the case, it appears that the parties had married in October, 1948, and had separated in December, 1949, after a little more than fourteen months of marriage. On April 5, 1950, Maxwell Sapp as plaintiff filed suit for divorce against Gertrude Sapp as defendant, charging mental cruelty in general terms. An amended complaint was later filed particularizing the conduct upon which the charge was based. Mrs. Sapp filed an answer to the amended complaint and filed a cross-complaint and later filed an amended cross-complaint against her husband seeking separate maintenance. She filed a further amendment later. David Sapp, the brother of Maxwell Sapp, and Eva Sapp, his mother, were joined as parties cross-defendant and are named in these proceedings because of some interest in property of the principal parties. They answered the amended cross-complaint.

The trial of the case started on November 26, 1951, upon the limited issue concerning the nature, extent and value of community assets. On December 5, 1951, the parties announced that they were prepared to enter into a stipulated judgment which gave the wife $7,500 for her interest in the community property and $2,500 attorneys fees and costs. Thereupon, the husband withdrew his amended complaint and his answer to the amended cross-complaint. The wife further amended her cross-complaint for separate maintenance so as to seek divorce and introduced evidence in support of her cause of action for termination of the marriage. An interlocutory decree of divorce was granted to Gertrude Sapp, embodying the above provisions of the stipulation concerning property. This interlocutory decree was entered December 28, 1951.

On June 23, 1952, Gertrude Sapp filed a notice of motion for an order vacating and setting aside the interlocutory judgment of divorce therein and reopening said cause for further hearing. The notice stated that the motion would be made on July 11, 1952. In the meantime no motion for a new trial had been made and no notice of appeal had been filed.

In affidavits of Gertrude Sapp and her attorney filed in support of her motion it was claimed that her husband, through his attorney, had made false representations at the trial which had induced her to enter into the stipulated judgment and she asked that the judgment be set aside and the case reopened because of alleged extrinsic fraud on the part of her husband. More than six months had elapsed between the entry of the interlocutory judgment on December 28, 1951, and the date of the motion on July 11, 1952.

On November 14, 1952, Gertrude Sapp's motion was granted. On January 7, 1953, Maxwell Sapp, together with his brother and mother, filed notice of appeal from the order of November 14, 1952, granting Gertrude Sapp's motion to set aside the judgment and reopen the case. The record of this appeal has not been filed in the reviewing court. Appellants have indicated their readiness to abandon this appeal which they can do under Rule 19a, Rules on Appeal, by filing a written abandonment of the appeal in the office of the clerk of the superior court. This will operate to dismiss the appeal and to restore the jurisdiction of the superior court.

On January 13, 1953, Gertrude Sapp obtained and served on Maxwell Sapp an order to show cause for support and attorneys fees and costs on appeal, to be heard on January 23, 1953.

On January 21, 1953, Maxwell Sapp and David Sapp served and filed in the trial court notice of motions to vacate the order of November 14, 1952 and to enter final judgment, said motions to be heard on January 23, 1953. Gertrude Sapp appeared specially for the purpose of objecting to the court's jurisdiction to consider the motions because of the earlier notice of appeal. Hearing on the motions was postponed and waits determination of proceedings now before this court.

Gertrude Sapp now seeks a writ of prohibition which would preclude consideration by the trial court of the motions last mentioned and would restrain further proceedings therein until the appeal has been decided.

Maxwell Sapp, David Sapp and Eva Sapp ask that the trial court be ordered to enter the final decree nunc pro tunc as of January 23, 1953, and be restrained from doing acts inconsistent therewith.

We have concluded (1) that the trial court was without legal authority to make its order of November 14, 1952 undertaking to set aside the interlocutory judgment and to reopen the case; (2) that Maxwell Sapp is entitled to have a final decree of divorce entered nunc pro tunc as of January 23, 1953; and (3) that Gertrude Sapp by the foregoing determinations is not precluded if she be so advised from instituting an action in equity seeking to be relieved of the effect of the stipulated judgment on the ground of extrinsic fraud, and asking that she have her rights as to the property only determined in the light of the facts as they existed on the date of the granting of the interlocutory decree.

The order of November 14, 1952 was not an order granting a new trial. It was not an order made in response to a motion made within the six months of the interlocutory decree, so it could not be regarded as having been made under powers granted by Section 473 of the Code of Civil Procedure.

It is suggested that the trial court had 'inherent power' to make such an order because of alleged extrinsic fraud of the husband. The case of King v. Superior Court, 12 Cal.App.2d 501, 506, 56 P.2d 268, relied on by appellant does not in our opinion furnish adequate support for this suggestion.

At the trial of the case now before us there were two separate issues presented for determination by the court: (1) the marital status of the parties; (2) their respective property rights.

As to the determination of the issue of marital status we find that Gertrude Sapp was the one to whom the divorce was granted, on testimony which she gave and produced. She makes no claim that it was fraudulent or incorrect on the issue of whether she should continue to be the wife of Maxwell Sapp. Both parties agreed in effect that if the mutual love, confidence and respect had once given vitality to their marriage it no longer existed. Gertrude Sapp asked for a judicial recognition of the fact that the marriage was dead, and Maxwell Sapp acquiesced. Although marriage is a personal relation arising out of a civil contract, section 55, Civ.Code, persons who are married and who desire to end that relationship must come into court to secure a divorce instead of being permitted to end it by mutual agreement. The laws relative to marriage and divorce, sections 55 to 181, Civ.Code, have been enacted because of the profound concern of our organized society for the dignity and stability of the marriage relationship. This concern relates primarily to the status of the parties as husband and wife. The concern of society as to the property rights of the parties is secondary and incidental to its concern as to their status. In the case before us there were no children and no problem of custody is involved.

The decision of the trial court granting the interlocutory decree had become final before the order was made purporting to set aside the decree and reopen the case. Bancroft v. Bancroft, 178 Cal. 367, 368, 173 P. 582; Deyl v. Deyl, 88 Cal.App.2d 536, 539, 199 P.2d 424; 9 Cal.Jur. 762. This order setting aside the decree and reopening the case was not sought because of any claim that vitality had been restored to the marriage, or because any fraud or error had clouded the evidence relating to the change of status of the parties. It was asked for only because the wife asserted that the husband had fraudulently concealed property in which she had a community interest and that she is entitled to a larger share than was awarded to her under the judgment to which she had stipulated.

Her notice of motion to set aside the interlocutory judgment and to reopen the case stated that it was upon the ground that the judgment resulted from a stipulation after approximately seven days of trial as a contested matter, that Maxwell Sapp had fraudulently concealed valuable community property, which he knew about and she did not, and that she relied upon his statement, representations and testimony that all community property had been disclosed and otherwise she would not have entered into the stipulation and 'that said stipulation occurred through her mistake, inadvertence, surprise or excusable neglect.' Affidavits in support of the motion were filed by Gertrude Sapp and by her attorney. The latter's affidavit disclosed that about two months before the trial he had spent eight and one-half hours continuous time taking depositions of Maxwell Sapp and David Sapp concerning their property and business. It further declared that these men at the trial produced a cash receipt book which they had previously denied to be in existence.

It is thus readily apparent that the trial of the divorce case between the parties was an adversary proceeding in...