Cope v. Cope

This is an appeal by defendant and cross-complainant from an order denying her motion to set aside an interlocutory judgment of divorce and a dismissal of the cross-complaint filed therein.

On October 20, 1961, plaintiff J. Hallam Cope, a physician, commenced the present action against Elizabeth M. Cope seeking a divorce on the grounds of extreme cruelty. Mrs. Cope answered and filed a cross-complaint for divorce on the same grounds. Eventually the ease was set for trial on the regular contested calendar for September 11, 1962.

On that day defendant was not present in court but was represented by her counsel Mr. Golde (not counsel on this appeal). At the beginning of the proceedings Mr. Golde advised the court that a property settlement had been agreed upon between counsel for the respective parties “and our respective clients, ’ ’ that Mrs. Cope was then in the hospital but that her attending physician had assured defendant’s counsel that she was “all right,” and that both of defendant’s doctors “felt it would be in her interest to proceed as per agreement. ’ ’ Counsel for both parties stated to the court that the agreement though prepared was then unsigned but embodied “all of our agreements.” The court thereupon heard the testimony of plaintiff and plaintiff’s corroborating witness. At the conclusion of the testimony both counsel waived findings of fact and conclusions of law. The court thereupon granted plaintiff an interlocutory judgment of divorce on the grounds of extreme cruelty and made orders for the custody and support of children and for the payment by plaintiff of certain community bills.^[1] The court further stated:^[1] ‘ The property settlement agreement orally agreed to by the parties, which is to be reduced to writing, is approved and the property will be distributed to the parties in accordance with its terms. . . . [W]hen you have . . . the property settlement agreement executed by the parties, if it is in accordance with the terms here delineated, the Court will approve it.”

Almost one year later on September 4, 1963, defendant filed in the court below a “Notice of Motion to Set Aside Interlocutory Judgment and Decree of Divorce (And Property Settlement Agreement Incorporated Therein) and to Set Aside Dismissal of Cross-complaint” on the grounds that such dismissal of the cross-complaint, interlocutory judgment and property settlement agreement incorporated therein “were obtained by extrinsic fraud and/or extrinsic mistake and/or extrinsic factors.” In support of her motion defendant filed two affidavits.^[2]

Defendant Elizabeth M. Cope’s affidavit states in pertinent part: Prior to September 11, 1962, the date set for trial, defendant had been negotiating for a property settlement through her attorney Mr. Golde but she had not agreed to the proposed terms of any agreement at the time of trial. On September 10, 1962, being extremely nervous and upset, defendant called her attorney and told him that her physical, mental and emotional condition was such that she could not proceed to trial on the following day. For approximately three years she had been under the care of Dr. Boyes, a psychiatrist. Her condition becoming progressively worse through the night of September 10 and “fearing that she would suffer a complete collapse and nervous breakdown,” affiant went to Samuel Merritt Hospital in Oakland where she was admitted at approximately 3 a.m.^[3] Early in the morning of September 11, 1962, she was visited by Dr. Hudson, her physician, who later told her that he had been in

Plaintiff’s affidavit states: Prior to September 11, 1962, the date of the divorce hearing, he had agreed orally, through his attorney, to the terms contained in the property settlement agreement which he signed on September 11. Since that date Mrs. Cope had repeatedly told him that irrespective of the settlement and the court's orders, she was going to do everything possible to see that affiant did not obtain a final decree of divorce and that he stayed married to her.

The affidavit of defendant’s attorney, Mr. Golde,^[4] states: Prior to September 11, 1962, affiant had been negotiating for a property settlement agreement on behalf of defendant. It is not true that, as defendant claims, she had not agreed to the proposed terms of any agreement prior to the time of trial. On September 7, 1962, affiant had a conference with defendant at his office, at which defendant’s psychiatrist Dr. Boyes attended. Affiant had requested defendant to have the doctor present because he wanted to be sure that she fully understood the agreement. Affiant and Mr. Toomajian had had previous conferences and had negotiated sufficiently so that affiant felt there was a reasonable opportunity of settling the matter on a basis advantageous to Mrs. Cope. Accordingly, at the conference with defendant on September 7, he spent approximately two hours discussing the various aspects of the agreement. At the conclusion “she and I had agreed what property settlement agreement terms would be acceptable to her and I had her authority to prepare and submit a property settlement agreement in substance as we had discussed.”

Affiant then conferred with Mr. Toomajian on Saturday, September 8, and “reached a meeting of the minds” pursuant to which the case could be settled upon the basis discussed with Mrs. Cope. The two attorneys agreed that Mr. Toomajian would submit the property settlement agreement and have

On the day preceding the trial, September 10, 1962,^[5] Mrs. Cope telephoned affiant stating that she wanted him to secure a continuance. He told her that the matter had been regularly set for trial, that a continuance could not be easily obtained without good cause, and that he had delayed the trial as long as he could. Mrs. Cope did not give any specific reason relating to her health but simply said that she didn’t want to go to court. Affiant then told defendant that in his opinion she did not have grounds for a continuance and should be in court the following morning, ready to proceed with the hearing.

Mr. Golde’s affidavit further states: On arrival in court the next day, he met defendant’s witnesses Mr. and Mrs. Corley who told him defendant would not be in court. Later he learned from Dr. Hudson that defendant was in the hospital. Dr. Hudson told him that she was “all right and was physically and mentally able to come to court but simply, in her words, ‘didn’t feel up to it.’ ” Affiant also called Dr. Boyes and learned from him that there was no reason why Mrs. Cope could not be in court, except that “she did not choose so to do.” Affiant then relates the events pertaining to the divorce hearing, the subsequent conference with defendant at the hospital and the eventual signing of the agreement. During the conference at the hospital defendant “was calm, she seemed to be in full control of herself and said that she was happy and relieved that it had not been necessary for her to go to court.” She pointed out to affiant two bills, the payment of which by plaintiff was discussed at the September 7 conference but which was not mentioned in the written agreement. Affiant assured her “that I believed Dr. Cope would care for these two additional items, which subsequently he did. ... I asked her at the conclusion of our conference whether she fully understood the entire Agreement, whether it was acceptable to her, and she assured me that it was with the exception of the two additional items which I have above referred to.” Affiant had Mrs. Cope sign the agreement and in due course delivered executed copies to Mr. Toomajian. In his opinion, she “was completely competent” at all times during the conference on September 11 and felt sure she understood the agreement.

Mr. Golde further states in his affidavit: Affiant would not have permitted defendant to sign the property settlement agreement had he believed she was in any way incompetent to execute it or unable for any reason to act freely and voluntarily in connection with it. He believed that under the circumstances there existed no basis for securing a continuance since it appeared to him that defendant had voluntarily hospitalized herself simply to avoid the pressure and strain of the impending court matter. Under the circumstances he felt that her interests were best served by proceeding with the trial after calling the court’s attention to defendant’s absence and by permitting plaintiff to obtain the divorce decree and securing his signature and that of defendant to the property settlement agreement. Had defendant been present at the trial, he would have sought either to have had the court grant the decree of divorce to her or at least have sought to have the court grant a decree of divorce to each of the two parties.

Mr. Golde’s affidavit concludes: “At no time subsequent to the granting of the decree did Mrs. Cope ever complain to me that she was incompetent at the time she signed the Property Settlement Agreement or that she did not fully understand or know what she was doing at that time. She did complain subsequently that she thought she should have gotten more, although she also recognized that she might have gotten less had the matter been contested. She also pointed out to me that what she really wanted to do was to stay married to Dr. Cope and I told her that this was not something which she was able to accomplish through any legal process.”

The court below denied defendant’s motion and her application for counsel fees and costs.^[6] This appeal followed.

Before we take up these contentions, we must determine whether the trial court’s order now sought to be reviewed is appealable.^[7] An order denying a motion to vacate a judgment is a special order after final judgment within the meaning of subdivision 2 of section 963 of the Code of Civil Procedure. (Spellens v. Spellens (1957) 49 Cal.2d 210 , 228-229 [ 317 P.2d 613 ]; In re Yoder (1926) 199 Cal. 699 , 702-703 [ 251 P. 205 ]; Pignaz v. Burnett (1897) 119 Cal. 157 , 163 [ 51 P. 48 ]; in accord: Daley v. County of Butte (1964) 227 Cal.App.2d 380 , 389 [ 38 Cal.Rptr. 693 ]; cf. Agnew v. Parks (1963) 219 Cal.App.2d 696 , 703 [ 33 Cal.Rptr. 465 ] ; Martin v. Martin (1963) 215 Cal.App.2d 338 , 340 [ 30 Cal. Rptr. 293 ]; Simmons v. Santa Barbara Ice etc. Co. (1958) 162 Cal.App.2d 23 , 25-27 [ 327 P.2d 1417 ]; see also Fitzsimmons v. Jones (1960) 179 Cal.App.2d 5 , 11 [ 3 Cal.Rptr. 373 ].) As a general rule, however, an appeal does not lie from an order denying a motion to vacate or set aside an appealable order or judgment when such motion merely calls upon the court to repeat or overrule its prior decision on the same facts since this would virtually allow two appeals from the same decision and would, in some cases, have the effect of extending the time for appeal from the prior judgment or order. (Raff v. Raff (1964) 61 Cal.2d 514 , 518 [ 39 Cal.Rptr. 366 , 393 P.2d 678 ]; Spellens v. Spellens, supra, 49 Cal.2d 210 , 228; Estate of Baker (1915) 170 Cal. 578 , 581-583 [ 150 P. 989 ]; Litvinuk v. Litvinuk (1945) 27 Cal.2d 38 , 44 [ 162 P.2d 8 ] ; Simmons v. Santa Barbara Ice etc. Co., supra, 162 Cal.App.2d 23 , 27; Agnew v. Parks, supra, 219 Cal.App.2d 696 , 703.) There is a well recognized exception to this rule, and an appeal from an order refusing to vacate will lie, where the “circumstances are such that ‘an appeal from the first order would be vain for lack of a record showing the rights of the aggrieved party.’ [Citations.] ” (Valentin v. Valentin (1949) 93 Cal.App.2d 588 , 592 [ 209 P.2d 654 ], quoting In re Yoder, supra, 199 Cal. 699 , 703; in accord:

In the instant case defendant’s motion was made on the grounds of extrinsic fraud, extrinsic mistake and extrinsic factors. Although an appeal lies from an interlocutory judgment of divorce (Code Civ. Proc., § 963, subd. 2) the record on such appeal would not reflect the above mentioned grounds and therefore would not disclose the “rights of the aggrieved party.”^[8] The case therefore falls within the exception rather than the general rule set forth above.

We have assumed during the foregoing discussion that the prior judgment was a final one. We must now inquire whether this is in fact so, since the order refusing to vacate the interlocutory judgment of divorce can be held appealable as a “special order made after final judgment” (italics added) only if the prior judgment itself is final. (Code Civ. Proc., § 963, subd. 2; Neilsen v. Saylors (1956) 146 Cal.App.2d 139 , 140 [ 303 P.2d 781 ].) Although the action was originally set for trial on the contested calendar, the record makes clear that it was heard and disposed of as an uncontested ease. Both counsel announced to the court that an agreement had been reached as to property rights which would be, and was, subsequently signed by the parties, approved by the court and made a part of the interlocutory judgment. The plaintiff offered evidence accommodated to an uncontested hearing, consisting of the adequate but not extensive testimony of plaintiff and his corroborating witness. Neither was cross-examined. No evidence was offered by defendant. The discussion between court and counsel at the conclusion of the testimony, which it is unnecessary to

Although defendant had filed an answer and cross-complaint and plaintiff an answer to the cross-complaint, the interlocutory judgment recites that the action came on for trial “on the Complaint of plaintiff above named, and defendant’s Answer thereto.” The judgment makes no mention of the cross-complaint. Defendant asserted in her subsequent motion and before this court that her former counsel Mr. Golde dismissed the cross-complaint. In his affidavit Mr. Golde does not contradict this. At no time has either of the parties challenged the finality of the judgment, although as we have pointed out, defendant attacked the judgment on other grounds. While the instant record does not contain the minute orders of the court and therefore does not specifically disclose the dismissal of the cross-complaint, we are inclined to believe that this was effectuated consistently with the disposition of the case as an uncontested one. In their supplemental memoranda filed with us, neither of the parties raises any question on this point. We therefore do not have a situation where the trial court failed to decide issues raised by a cross-complaint so as to bring the interlocutory judgment within the rule that a “ [judgment rendered on a complaint alone, unaccompanied by judgment on a pending cross-complaint, is not a final judgment, and appeal from it may be dismissed on motion.” (Tsarnas v. Bailey (1960) 179 Cal.App.2d 332 , 337 [ 3 Cal.Rptr. 629 ].)^[9] It therefore appears that the interlocutory judgment of divorce was a final judgment within the meaning of Code of Civil Procedure section 963 and that the order before us is a “special order made after final judgment” within the meaning of subdivision 2 of that section. We conclude that such order is appealable.

We turn to the merits of the appeal. Defendant by her motion to vacate invoked the broad equitable power of the trial court to grant her relief against extrinsic fraud, extrinsic mistake and “extrinsic factors.” The applicable legal principles are settled. “One who has been prevented by extrinsic factors from presenting his case to the court may

Finally we turn to defendant’s claim that the court below erred in denying her motion for attorney’s fees.^[10] In her affidavit in support of the motion to vacate defendant alleged that she “does not have sufficient means or money with which to pay her attorney’s fees in these proceedings ’ ’ and that Dr. Cope was well able to pay them. Dr. Cope’s affidavit did not deny these allegations. At the conclusion of the hearing on the motion the court denied the request of defendant’s present counsel for fees.^[11]

The court may award such attorney's fees as may be reasonably necessary to maintain or defend any proceedings subsequent to the entry of judgment. (Civ. Code, § 137.3.) Such an award is not a matter of right. (Chapman v. Tarentola (1960) 187 Cal.App.2d 22 , 25 [ 9 Cal.Rptr. 228 ] ; Straub v. Straub (1963) 213 Cal.App.2d 792 , 799 [ 29 Cal. Rptr. 183 ].) “The motion for the allowance of counsel fees and costs in a divorce action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal.”

In the instant case, the court below had before it the entire file on the case, which disclosed that the wife had received substantial property and other benefits pursuant to the property settlement agreement. The court could reject defendant’s statement that she did not have sufficient “means or money” and infer that she did have property of some substantial value. Furthermore the court concluded defendant’s motion to vacate “was not founded on any justifiable ground.” (McMahan v. McMahan (1955) 130 Cal.App. 2d 736 , 739 [ 279 P.2d 767 ].) As we have pointed out (fn. 11, ante), the court could find no ground for allowing fees. Nor is it entirely clear to us that as defendant claims the judge “admitted” that the motion was made in good faith. The judge stated that it “might well have been, ...” (See fn. 11, ante.) As pointed out previously, defendant took no action until almost a year after the judgment. She told her former counsel that what she really wanted to do was to stay married to Dr. Cope. The court might well have inferred from this that she did not bring the motion in good faith. We find no abuse of discretion in the denial of attorney’s fees.

The order appealed from is affirmed.

Molinari, J., and Bray, J.,^[12] concurred.

A petition for a rehearing was denied October 29, 1964, and appellant’s petition for a hearing by the Supreme Court was denied December 17, 1964.