Waller v. Waller

• Decision Date: 13 January 1970
• Citation: 3 Cal.App.3d 456,83 Cal.Rptr. 533
• Court: California Court of Appeals Court of Appeals
• Parties: Charlotte V. WALLER, Plaintiff and Appellant, v. John F. WALLER, Defendant. Jeanie Lakens, as Administratrix of the Estate of John F. Waller, Deceased, Movant and Respondent. Civ. 12113.

Page 533

83 Cal.Rptr. 533

3 Cal.App.3d 456

Charlotte V. WALLER, Plaintiff and Appellant, v. John F. WALLER, Defendant Jeanie Lakens, as Administratrix of the Estate of John F. Waller, Deceased, Movant and Respondent.

Civ. 12113.

Court of Appeal, Third District, California.

Jan. 13, 1970.

Edwin L. Z'Berg, Sacramento, for plaintiff-appellant.

Colley & McGhee by Nathaniel S. Colley, Sacramento, for defendant-movant and respondent.

JANES, Associate Justice.

This is an appeal by plaintiff wife from an order granting a motion by the administratrix of defendant's estate for entry of a final decree of divorce Nunc pro tunc, and from the final decree thereupon entered. Since an appeal does not lie from the order, that portion of the appeal must be dismissed; the order is reviewable on appeal from the final decree. (Nemer v. Nemer (1953) 117 Cal.App.2d 35, 37, 254 P.2d 661; Nicolai v. Nicolai (1950) 96 Cal.App.2d 951, 954--955, 216 P.2d 913.)

Plaintiff obtained an interlocutory decree of divorce from defendant John F. Waller on January 30, 1963. Defendant died on April 10, 1967, before entry of a final decree. Respondent, defendant's daughter by a previous marriage, is also administratrix of his estate. Upon motion by her as administratrix, ¹ the trial court on May 15, 1968, granted a final decree of divorce and directed its entry Nunc pro tunc as of January 31, 1964. The motion was made under section 133 of the Civil Code ² on the ground that the final decree could have been entered on 'February 1, 1964' or at any time thereafter, 'but was not so entered through inadvertance (sic), mistake and excusable neglect.'

Plaintiff's attack upon the action of the trial court is based upon the contentions that (1) the evidence supporting a reconciliation between the parties was clear, undisputed and conclusive, but (2) assuming, Arguendo, that the evidence was insufficient to establish a reconciliation, the trial court exceeded its authority, under the circumstances of this case, in entering the final decree Nunc pro tunc.

The Issue of Reconciliation

Declarations under penalty of perjury were filed in support of, and in opposition to, the motion. Sharp conflicts--particularly on the issue of reconciliation--were raised by plaintiff's declaration opposing the requested order. At the hearing of the motion, the only testimony given was that of plaintiff and her daughter, Dorothy Sheehan.

Plaintiff argues that 'the evidence was overwhelming and undisputed that there was a reconciliation.' However, '(l)ike oral testimony, it is the province of the trial judge, in considering affidavits, to determine the credibility of the affiants, weigh their assertions and resolve any factual conflict created thereby.' (Mackie v. Mackie (1962) 208 Cal.App.2d 547, 551--552, 25 Cal.Rptr. 336, 338.) 'In those cases where the issues are tried on affidavits, the rule on appeal is that the affidavits which favor the contentions of the prevailing party establish the facts stated therein, and all facts which reasonably may be inferred therefrom. * * * When there is a conflict in the facts presented by affidavits, the determination of those facts by the trial court will not be disturbed on appeal.' (Kern v. Kern, Supra, 261 Cal.App.2d at p. 337, 67 Cal.Rptr. at p. 810.) Here, the trial court concluded that 'after the Interlocutory Decree of Divorce was entered herein the parties did not affect a reconciliation.' The record supports the court's determination.

After the entry of the interlocutory decree on January 30, 1963, plaintiff and John lived at separate addresses in the Sacramento area until September 1, 1963. During this interval, John visited plaintiff on some Sundays and on occasions they had lunch together. In an effort to save their marriage, and at the same time save their Sacramento marital home from repossession, plaintiff and John lived together in the family home from September 1, 1963, into November of that year, when they again separated. There was no evidence they had sexual relations during that period.

John moved to Texas in January 1964. He returned to Sacramento in November 1964 to attend the trial of a personal injury action brought by him against his former employer, the Southern Pacific Company, under the Federal Employers' Liability Act. While in Sacramento for that purpose, he resided at a downtown hotel. Plaintiff visited him at the hotel once accompanied by her daughter, and they had dinner with him. After the trial against the railroad, wherein he obtained judgment, John returned to Texas.

Though living separately, plaintiff and John filed married couple's joint income tax returns in 1964, 1965, and 1966, in order to obtain a tax advantage. During 1966, John sent plaintiff a Southern Pacific railroad pass, in which plaintiff was described as 'Wife of Train Dispatcher, Retired.' John did not write plaintiff any letters from the date of the interlocutory decree until his death. Plaintiff never requested dismissal of her divorce suit against him.

John's F.E.L.A. judgment ³ was affirmed by the California Supreme Court in March 1967. (Waller v. Southern Pacific Co. (1967) 66 Cal.2d 201, 57 Cal.Rptr. 353, 424 P.2d 937.) On April 6, 1967, John wrote from Texas to his Sacramento attorney (Mr. Colley) and asked him to 'arrange for me at your very earliest convenience, if possible, to obtain * * * (a) final divorce decree from Charlotte (plaintiff).' John's death occurred four days later in an automobile collision in Texas.

'Under the law of this state, whatever their conduct with each other subsequent to entry of the interlocutory judgment, to justify denial of a dissolution of the marriage it, at least, must have been such as to constitute a reconciliation of the parties * * *; and it is the duty of the court, where grounds for divorce have been established by an interlocutory decree which has been unassailed until application for final decree, to enter the latter 'unless there is Clear and cogent proof of reconciliation and resumption of connubial relations, or some other legal ground for denying dissolution of the marriage.' * * * Mere cohabitation or living on the same premises is not sufficient to constitute a ground for denial of a final judgment. Living in the same house, or engaging in acts of sexual intercourse, or cohabiting together as husband and wife during the interlocutory period does not as a matter of law establish a reconciliation of the parties; in addition, there must be an intent on the part of the prevailing party to condone past conduct of the offending party and to restore him to all marital rights. * * *' (Mackie v. Mackie, Supra, 208 Cal.App.2d at pp. 549--550, 25 Cal.Rptr. at p. 337.) (Italics ours.)

A reconciliation occurs when the circumstances show that the parties mutually intended to permanently reunite as husband and wife and that there has been an unconditional forgiveness by the prevailing party. The mere passage of time during which the parties cohabit is not conclusive as to a permanent reconciliation. The controlling question is the actual finding of an intent to reconcile. Whether an agreement is an unconditional one of forgiveness, and therefore justifies the denial of the final decree, or is a conditional one, and therefore warrants the granting of the final decree, is a question of fact for the trial court. If the evidence, or the reasonable inferences therefrom is conflicting, the determination by the trial court is conclusive on the appellate court. (Kern v. Kern, Supra, 261 Cal.App.2d at p. 331, 67 Cal.Rptr. 802; Mackie v. Mackie, Supra, 208 Cal.App.2d at pp. 550--551, 25 Cal.Rptr. 336; Tompkins v. Tompkins (1962) 202 Cal.App.2d 55, 58, 20 Cal.Rptr. 530; Small v. Small (1954) 123 Cal.App.2d 870, 874, 268 P.2d 63; Nemer v. Nemer, Supra, 117 Cal.App.2d at pp. 38--39, 254 P.2d 661.)

The Showing of 'Mistake, Negligence or Inadvertence'

Before relief can be granted under Civil Code, section 133, that section requires a showing that 'by mistake, negligence or inadvertence' the final decree either has not been entered or, if previously entered, it was not entered as soon as it legally could have been. 'In the absence of such a showing the court is without power to enter the final decree Nunc pro tunc.' (Berry v. Berry (1956) 140 Cal.App.2d 50, 59, 294 P.2d 757, 764.) Plaintiff asserts there was no such evidence on the present motion.

Evidence alone that a party merely failed to apply for a final decree of divorce does not constitute mistake, negligence, or inadvertence, since '(t) here is no rule of law which compels a party to apply for a final decree and the circumstances may be such that a party does not wish to apply for one. Many factors may prompt inaction, i.e., there may have been a reconciliation or there may be hope of one. * * *' (Berry v. Berry, Supra, 140 Cal.App.2d at p. 60, 294 P.2d at p. 764.)

In the case at bench, however, the trial court in written findings--as well as in its order directing Nunc pro tunc entry--expressly found that 'through inadvertence, mistake and excusable neglect on the part of * * * John F. Waller, no Final Decree of Divorce was entered prior to his death.' Evidence to support this finding is contained in the declaration under penalty of perjury executed and filed by respondent administratrix in support of her motion. That evidence consists primarily of a conclusionary recital, which is italicized in the context as follows: 'That the parties have not reconciled since the entry of said Interlocutory Decree of Divorce and at all times have continued to live separate and apart from each other. That during the last years of his life * * * John F. Waller was ill; since the action was brought by plaintiff herein and she pressed it He assumed that she would enter a Final Decree of Divorce; but she did not; that on or about April 1, 1967 decedent contacted his attorney, NATHANIEL S. COLLEY, ESQ., and ask(ed) whether such decree had...