Thorp v. Thorp
Decision Date | 16 November 1931 |
Docket Number | 23255. |
Citation | 4 P.2d 1103,165 Wash. 255 |
Parties | THORP v. THORP. |
Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, King County; Calvin S. Hall, Judge.
Action for divorce by Eugene L. Thorp against Viola S. Thorp. From an order vacating divorce decree, plaintiff appeals.
Affirmed.
V. A Montgomery, of Seattle, for appellant.
Donald C. Husted and Dykeman, Monheimer & Griffin, all of Seattle for respondent.
Plaintiff commenced an action March 11, 1930, for divorce from the defendant. On April 23, 1930, no appearance in the cause having been made by the defendant, an order of default was entered, and after a hearing the court entered an interlocutory order in favor of the plaintiff. On October 23 1930, plaintiff moved, and filed his affidavit conforming to the requirements of superior court rule 5 in support of his motion that final judgment be entered granting him an absolute divorce from the defendant. The plaintiff averred 'that six months have elapsed since the entry of said interlocutory decree and during that time and the whole thereof, he has not lived with or cohabited with the above-named defendant and that he is now entitled to have a final decree of absolute divorce entered in said cause.'
The plaintiff's motion was granted. Shortly following the entry of the decree of absolute divorce, the defendant filed her petition for the vacation of the decree on the ground that the plaintiff's affidavit was false. Hearing upon defendant's petition resulted in the setting aside and the annulling of the final decree of divorce; the court finding, substantially, as follows:
On April 23, 1930, interlocutory order was entered determining the property rights of the plaintiff and the defendant. To the plaintiff was awarded the custody and control of the minor child of the parties. The plaintiff at that time represented to the defendant that she would always be permitted to have the possession of the minor child. With his consent and approval, and at the partial expense of the plaintiff, and prior to the entry of the interlocutory order the defendant took the minor child of the parties with her to the state of California, where they remained until August, 1930, when she returned to Seattle. Upon her return to Seattle, the defendant continued to retain the possession of the minor child. During the month of September she, becoming apprehensive that the plaintiff would not permit the child to remain with her, consulted an attorney, and requested him to examine the records to ascertain whether a final decree of divorce had been entered. About September 13, 1930, the plaintiff represented to the defendant that it was his desire that they become reconciled and again live together as husband and wife. Believing the representations of the plaintiff, and at his urgent request, the defendant spent the night of September 13, 1930, with the plaintiff in a certain hotel in Seattle, on which occasion she cohabited with the plaintiff, and the parties thereby...
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McClure v. McClure
...and often legal significance is to copulate. The latter interpretation was, in our opinion, intended by our legislature." In the Thorp case, supra, the Washington Supreme Court that where the husband and wife sporadically spent the night together this amounted to a cohabitation. To the same......
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Burchfield v. Burchfield, 27988.
...of the interlocutory order. This court held such a finding to sufficient to warrant the vacation of the final decree of divorce. In Thorp v. Thorp, supra, the only resumption of the relation was that the wife, upon the husband's representation that he desired a reconciliation, spent the nig......
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Garibaldi v. Garibaldi
...559, 561, 197 P.2d 10, 11: '* * * occasional cohabitation does not alone establish a reconciliation.'' Appellant cites Thorp v. Thorp, 165 Wash. 255, 4 P.2d 1103, wherein plaintiff in applying for a final decree of divorce filed an affidavit which stated that since the entry of the interloc......