Opinion
Docket No. S.F. 15127.
April 22, 1935.
APPEAL from an order of the Superior Court of Alameda County denying a motion to set aside an interlocutory and final decrees of divorce. John D. Murphey, Judge. Affirmed.
The facts are stated in the opinion of the court.
A.Q. Lomba and W.L. Albert for Appellants.
O.G. Foelker and J.H. McKnight for Respondent.
[1] Appeal from an order denying motion by the defendant husband to set aside an interlocutory and final decree of divorce upon the ground that said decrees had been obtained by fraud of the plaintiff wife in that the parties had become reconciled in the interim between the trial of the action and the entry of the interlocutory decree and in the interim between the entry of the interlocutory decree and the entry of the final decree. The husband in an affidavit filed on behalf of said motion alleges that the plaintiff and defendant lived together as husband and wife subsequent to the trial of the divorce action and prior to the entry of the interlocutory decree of divorce; that while they were continuing to live together as husband and wife, subsequent to the entry of the interlocutory decree of divorce, the wife obtained the entry of the final decree without the knowledge and consent of the defendant; and that she perpetrated a fraud upon the court by filing an affidavit to the effect that the parties had not become reconciled whereas in fact they had become reconciled and had been living together as husband and wife for over two years prior to the entry of the final decree. The affidavit of the wife with reference to the fact of reconciliation and the living together as man and wife flatly contradicts the affidavit of the husband and the other affidavits filed in support of his motion. Her affidavit is supported by the affidavits of some ten or twelve persons who were familiar with the domestic situation of the parties and were in a position to observe the attitude of the parties toward each other. Upon such a conflict of evidence, the order of the trial court denying the motion to vacate said decrees will not be disturbed by an appellate court.
The order is affirmed.
Langdon, J., Preston, J., Shenk, J., Waste, C.J., Seawell, J., and Thompson, J., concurred.