Opinion
Hearing Granted Sept. 14, 1944.
Appeals from Superior Court, Los Angeles County; Carl A. Stutsman, Judge.
Action for divorce by Paul Litvinuk against Anna Litvinuk. From a judgment for plaintiff, from an order denying the defendant’s motion to vacate judgment for plaintiff and from order denying motion to reopen case and for a new trial, defendant appeals.
Order denying motion to vacate judgment reversed and appeals from judgment and order denying motion to reopen case and for new trial dismissed.
Prior opinion, 149 P.2d 882. COUNSEL
A. P. Coviello, of Los Angeles, for appellant.
Ernest Best, of Los Angeles, for respondent.
OPINION
SHINN, Justice.
Plaintiff brought this action for divorce, charging desertion and mental cruelty. Defendant, who resided in Pennsylvania, came to California, employed attorneys and filed an answer. In August, 1942, an order was made for the payment of $25 fees to defendant’s attorney and $4 a week for the support of the 17-year-old son of the parties, who was residing with defendant. On October 6 defendant changed attorneys and employed one A. P. Coviello, who was then engaged in the trial of a criminal case in which his client, with many others, was charged with murder. Prior to that time the divorce trial had been set for March 15, 1943. On October 9 plaintiff served on defendant’s first attorneys a notice of a motion to advance the case for trial; the motion was heard October 16 and the trial was advanced to November 23; on the latter date Mr. Coviello made a motion for a continuance on the ground that he was then actually engaged in the trial of the murder case. The motion was denied by a judge who was acting as presiding judge, the case was sent out to a trial department and, because of other engagements of the judge of that department, was sent back to the calendar department, where it was continued to December 4. In granting the continuance the court ordered that the case be tried on December 4 and that Mr. Coviello or some other attorney be prepared to try it at that time. On December 4 Mr. Coviello was still engaged in the criminal case and made a motion for a further short continuance, supported by affidavit. This motion was denied, but on account of the condition of the calendar the case went over from Friday to Monday, December 7, when it was again sent out to a trial department. Mr. Coviello was still engaged in the criminal case. He sent a clerk to the trial department to inform the court that he was so engaged. Defendant during these proceedings had been accompanied to court by an adult son of the parties. In the trial department she requested a continuance until her attorney could be present. The court denied a continuance and proceeded with the trial in the absence of Mr. Coviello and without communicating with him. Plaintiff was sworn and gave testimony which, if believed and corroborated, would have justified the granting of a divorce to him. At the conclusion of plaintiff’s testimony and that of a witness which was offered under the label of corroboration, the following proceedings took place:
"The Court: Take the stand, Mrs. Litvinut.
"The Defendant: Your Honor, I can’t understand without my attorney here. I would like to have him here.
"The Court: The record shows your attorney has had plenty of chance to be here.
"The Defendant: He told me I should say this to you.
"The Court: You get up on the stand and I will be your attorney.
"The Defendant: But my attorney, I want him to be here, please.
"The Court: He has had plenty of chance to be here. Do you want to tell me about your side of the case?
"The Defendant: I can’t tell it without my attorney.
"The Court: All right. Decree granted to the plaintiff." Later, on the same day, Mr. Coviello gave notice of a motion, to be heard on December 16, to vacate the minute entry ordering a decree in favor of plaintiff and for reopening of the case. He made an affidavit by which he represented that on December 7 he was actually engaged in the trial of the criminal case, and defendant made an affidavit in which she stated that on December 4, when the motion had been made for a short continuance in the calendar department, Mr. Coviello’s client in the criminal case was then under cross-examination by the district attorney and it was impossible for him to leave the trial to attend the trial of the instant case. Her affidavit further stated that plaintiff, shortly before coming to California, had instituted an action for divorce in the State of Pennsylvania; that the case had been tried and that plaintiff had been denied a divorce. No affidavit by plaintiff was filed denying these statements concerning the Pennsylvania case. Plaintiff’s attorney filed an affidavit which contained the following equivocal statement: "That affiant also alleges that to his knowledge no action was ever filed for divorce in the State of Pennsylvania wherein the divorce was denied." Unaccountably, Mr. Coviello failed to make an appearance on December 16 to present his motion and it was denied. Immediately thereafter findings and a decree of divorce were signed and filed. On February 17 Mr. Coviello gave notice of a motion, under section 473 of the Code of Civil Procedure, to vacate the decree on the grounds of "mistake, inadvertence, and surprise." With the motion was tendered a verified proposed cross-complaint for separate maintenance, charging plaintiff with willful neglect. It was alleged in the cross-complaint that plaintiff herein on or about March 5, 1940, had instituted a divorce action in the Court of Common Pleas for Philadelphia County, Pennsylvania; that said divorce proceeding continued for approximately one year, and that plaintiff herein had been denied a divorce in that action.
In an affidavit of defendant’s attorney filed shortly before the argument of the motion to vacate the judgment, it was stated that in several conversations between the affiant and plaintiff’s attorney, prior to the trial, mention had been made of the Pennsylvania case and of the fact that plaintiff had not complied with an order made in that case for the payment of costs and attorney’s fees. Plaintiff’s attorney filed an affidavit on the following day in which there was no denial of these conversations or of the existence of the Pennsylvania decree.
Defendant so framed her notice of motion to vacate the judgment that it could be construed as also a notice of intention to move for a new trial but she filed the notice on the 61st day after the judgment was entered. Her right to appeal from the judgment expired with the 60th day and with it the right to have a review of the order denying her motion in so far as it related to her motion for a new trial. Code of Civ.Proc. § 939; Pacific Light, etc., Corp. v. Kauffman, 1919, 39 Cal.App. 499, 179 P. 452; Bates v. Ransome-Crummey Co., 1919, 42 Cal.App. 699, 184 P. 39. The question is suggested by these facts whether defendant upon her appeal from the order refusing to vacate the judgment has a right to have reviewed rulings which were made before the findings and judgment were signed and which were specified as a ground for a new trial. We do not answer this question for reasons which will hereinafter appear. We deem it immaterial whether as a matter of strict right and according to established procedure defendant could attack the judgment by motion under section 473 of the Code of Civil Procedure (but see Foley v. Foley (1898), 120 Cal. 33, 52 P. 122, 65 Am.St.Rep. 147; Rehfuss v. Rehfuss, 1915, 169 Cal. 86, 91, 145 P. 1020).
The case, in our opinion, is clearly one in which the interest of the state was and is paramount to the interests or procedural rights of either or both of the parties. We think it was the duty of the court to vacate the judgment when it was made to appear that the plaintiff, shortly before coming to California, had been denied a divorce after a trial in Pennsylvania.
It appears from the record that the court was not advised at the time of the trial of the case that plaintiff had previously sued for divorce and had been denied a decree. As the record stands, it appears as an admitted fact that after being denied a divorce in Pennsylvania plaintiff came to California and instituted the present action as soon as he had established a residence and that he concealed the fact of the former judgment from the California court. No claim was made at the trial that any grounds for divorce had arisen recently; plaintiff accused his wife of cruelty and desertion and it appeared that they had not lived together since 1934 and that he had made no effort to bring her to California.
Only one witness was produced to corroborate the plaintiff’s testimony, one Mary Dimitroff, whose testimony we quote in full, as follows: "By Mr. Best: Q. You know both parties to this action, Anna and Paul Litvinu? ?
A. I know Anna Litvinut from 1912, when I come to the United States.
"Q. You know Paul has lived in this County and State since February, 1941?
A. In this State, yes; he has been to my house.
"Q. You knew both these parties when they were married back East, did you not?
A. Yes.
"Q. Do you know of your own knowledge these parties separated in 1934?
A. Yes; I was on a trip back East then, and I heard from my parents they are separated. They fight, and they lead an unhappy life.
"Q. You also saw Paul at that time, did you not?
A. Yes.
"Q. You knew he had left the house?
A. Yes.
"Q. Because he was going to be beaten up?
A. I heard they fighting and don’t live together.
"Q. You know that separation was against his will and consent?
A. That’s right.
"Q. You know they have lived separated and apart ever since that time?
A. That’s right.
"Q. Were these parties very happily married? A. I know they was not.
"Q. Tell the Court what you have observed about the married life--fighting on the streets, and all that?
A. Well, I believe it was 1921; I am not very sure; I saw them on Easter Day, another lady fighting her.
"Q. On the street?
A. Yes.
"Q. A fist fight?
A. Yes; they been fighting.
"Q. Do you know that Paul and Anna were never happy in the house?
A. That’s what I heard.
"Q. You were in the house too, weren’t you?
A. Yes.
"Q. Did you ever see how Anna treated Paul?
A. No, I never saw.
"Q. Never saw her treat him affectionately?
A. No.
"Mr. Best: That’s all."
We think it must be conceded that the testimony of this witness was wholly ineffective as evidence to establish either cruelty or desertion and that the proof failed to meet the requirements of section 130 of the Civil Code that no divorce shall be granted upon the uncorroborated testimony or admission of the parties.
When the court was called upon to vacate the judgment it was confronted not alone with the claims of error asserted by the defendant, but with established rules of law and public policy which affect the interests of the state and of the court. Through inadvertent failure of the court to properly appraise the testimony, a decree of divorce had been granted to plaintiff which it was not within the power of the court to grant, for under no construction of the attempted corroboration could the evidence of Mary Dimitroff have been deemed sufficient to meet the requirement of the statute. The court has no general power to grant divorces. Its authority is derived from statutory law and must be exercised within legal limitations. It was said in Grannis v. Superior Court, 1905, 146 Cal. 245, at page 253, 79 P. 891, at page 895, 106 Am.St.Rep. 23, "The provision forbidding the granting of a divorce solely upon the admission, stipulation, or testimony of the parties goes to the sufficiency of the proof, which is not ordinarily disclosed upon the record. A disregard of this provision cannot be made to appear of record except upon appeal, and for this reason it cannot be made the subject of inquiry upon any collateral attack. But on appeal, where such disregard appears, it is always held to be an act beyond the power of the court to do, or of the parties to sanction, and absolutely void."
We mention the obvious insufficiency of the evidence because it should have appealed to the court as a good reason for vacating the decree as being unauthorized by law and also because the requirement for corroboration is a manifestation of the interest of the state in the matter of divorce, which should be considered with other questions of public policy which confronted the trial court and confront us on the appeal. At the risk of redundancy we will mention a few of the pertinent expressions of our courts touching the subject of divorce. In McBlain v. McBlain, 1888, 77 Cal. 507, at page 509, 20 P. 61, it was said: "Not only can no divorce be granted upon the default of the defendant, or a finding of fact made by a referee, but the law inhibits the granting of divorces upon the uncorroborated testimony or admission of the parties. The parties to the action are not the only people interested in the result thereof. The public has an interest in the result of every suit for divorce; the policy and the letter of the law concur in guarding against collusion and fraud; and it should be the aim of the court to afford the fullest possible hearing in such matters." See also Cottrell v. Cottrell, 1890, 83 Cal. 457, 23 P. 531. In Grannis v. Superior Court, supra, 146 Cal. at page 252, 79 P. at page 894, 106 Am.St.Rep. 23, it was said: "The parties to such an action have not the right to control procedure as in other actions. The court is not bound by admissions in the pleadings, nor by the stipulations of the parties, nor is its inquiry as to the facts limited by the pleadings" and the court quoted from Deyoe v. Superior Court, 1903, 140 Cal. 476, 482, 74 P. 28, 98 Am.St.Rep. 73, as follows: "While an action to obtain a decree dissolving the relation of husband and wife is nominally an action between two parties, the state, because of its interest in maintaining the same unless good cause for its dissolution exists, is an interested party. It has been said by eminent writers upon the subject that such an action is really a triangular proceeding in which the husband and the wife and the state are parties." See also Kegley v. Kegley, 1936, 16 Cal.App.2d 216, 60 P.2d 482. In Rehfuss v. Rehfuss, supra, 169 Cal. 86, at page 92, 145 P. 1020, at page 1022, the court said: "Where it becomes manifest to the court, before it loses jurisdiction of the case, that a judgment decreeing a divorce has been obtained by collusive agreement between the parties, or through fraud practiced upon the court, the court has the inherent power to set aside the judgment. This it may do on its own motion. [Citing cases.]"
An attempt to procure a divorce in this state which had recently been denied by the courts of Pennsylvania, by concealing information as to the earlier case, would have been a flagrant fraud. It would be scandalous and a reproach to the administration of justice to allow one who had been denied a divorce in the state of his domicile to go to another state and, through concealment of the earlier judgment, obtain relief which his own courts had denied him. The interest which the state has in the institution of marriage and the preservation of family ties and sound public policy call for the assertion by the courts of their dignity and independence and for prompt and effective action to learn whether a litigant is attempting or has perpetrated deceit upon the court by the concealment or misrepresentation of material facts. The divorce laws of California are moderately strict and the legislature has repeatedly refused to relax them. By reason of this attitude and the vigilance of the courts in requiring adequate proof in divorce cases, including corroboration as to material facts, the courts of California have been free from the criticism that divorces may be had for the mere asking, with little or no regard for the merits of the case. So far as the record shows, defendant had a complete defense to the action. The fact that the former adjudication was not alleged by answer evidences neglect upon the part of defendant or her counsel or both. But where matters of grave public policy are involved, the ignorance or negligence of the parties or the mere mistakes or derelictions of their attorneys cannot affect the power and duty of the court to withhold a judgment which is undeserved or to vacate one which has been obtained wrongfully. It is the policy and the practice of the courts to allow and even to encourage a full disclosure of the facts in divorce cases. The rules of procedure are relaxed as in no other class of cases so as to accord a hearing as to the merits of defenses asserted in apparent good faith. This policy has been consistently followed in our state and we regard it as controlling upon this appeal. The defendant had come to California with a son of the parties for the purpose of defending the action. Both were in court for the purpose of testifying and they had been accused by the testimony of plaintiff of having forcibly ejected him from the home. The son was accused of having struck his father on that occasion. Defendant, through no fault of her own, found herself without the services of her attorney on the day of the trial. It does not appear that she had ever been advised that she would have to procure the services of another attorney on the trial if Mr. Coviello was unable to attend, nor does it appear that Mr. Coviello made any effort to procure the services of other counsel for her. She should not be held accountable for her attorney’s mistakes or lack of co-operation to the extent of having the case go against her without a full hearing. She was given an opportunity to tell her story, but in insisting that she could not do so in the absence of her attorney she appears to have been acting under his instruction. She was not questioned as to the acts of which she and the son had been accused in the testimony of the husband. It is not at all surprising that she felt helpless and incapable of presenting her defense when asked if she wanted to tell about her side of the case. She must have had an earnest desire to tell it when she came from Pennsylvania to California for that purpose. The opportunity which she had to present her defense might have been sufficient in an ordinary civil action but we think it was not sufficient in this suit for divorce. As said in Rehfuss v. Rehfuss, supra, 169 Cal. 86, at page 92, 145 P. 1020, at page 1022: "An action for divorce concerns not only the parties immediately interested, but also the state. The attorneys in the case represent the respective parties--the court in a sense represents the state. It is the duty of the court, representing the state, in accordance with the letter and policy of the law, to guard strictly against fraud, collusion, or imposition when the husband or wife seeks to dissolve the bonds that bind them together."
No excuse has been offered for the failure to plead the former adjudication as a defense to the action, and if this were an ordinary civil action, defendant’s motion to vacate the judgment could have possessed little merit in view of the manner in which her case had been handled. But the decision of the court as to whether a divorce will be granted cannot be influenced by the agreements or stipulations of the parties nor can it be affected, where questions of public policy are involved, by the mistakes or negligence of the parties. Even if the decree should not have been vacated upon any of the grounds of defendant’s motion, the facts alleged by defendant and not contradicted should have caused the court to vacate the decree on its own motion. The alleged facts as to the Pennsylvania decree were not brought to the attention of the court until the case had been tried. They were first alleged in the affidavit filed December 7 with defendant’s motion to reopen the case. At the time set for hearing the motion Mr. Coviello made no appearance. The record does not show that defendant’s affidavit was called to the attention of the court or that the court was otherwise informed of the alleged facts as to the Pennsylvania case. Mr. Coviello’s failure to appear and press the motion may well have indicated to the court that the effort to reopen the case had been abandoned. But however that may be, the motion to vacate the decree was submitted March 19, 1943, on the record and the affidavits of the attorneys for plaintiff and defendant, and no objection was made by plaintiff that the questions involved had previously been submitted to the court and that they had been ruled upon directly or indirectly. It was within the jurisdiction of the court to vacate the decree and to allow a trial of the action on the merits. For the reasons we have stated, we think there was also a duty to vacate it so as to allow a full inquiry into the facts, which showed, prima facie, that the court had been imposed upon by plaintiff’s concealment of the alleged facts concerning the Pennsylvania case. It is quite probable that the court had no knowledge of the claims made with reference to that case until the motion to vacate was presented, but if the facts could have been or were known to the court before and no action had been taken thereon, no theory of estoppel or res judicata could deprive the court of its inherent power to correct the mistake.
The order is reversed for further proceedings in accordance with the views herein expressed. The appeals from the judgment and the order denying the motion to reopen the case and for a new trial are dismissed.
DESMOND, P. J., and PARKER WOOD, J., concur.