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District Court of Appeal, Second District, Division 1, California.


Civ. 18902.

Decided: June 23, 1952

Barry Sullivan, Los Angeles, for appellant. Hal R. Clark, Los Angeles, for respondent.

This is an appeal by a husband from an order vacating a default judgment of divorce he obtained upon a complaint wherein he alleged under oath that no child had been born to the union when he well knew the allegation was perjurious.

The husband, it appears, has been living separate and apart from his wife and child for a period of over 12 years. In that period he has not contributed anything to the support of the wife and on the average has contributed less than one dollar per week for the support of the child, even though he is earning $300 per month.

The wife did not answer the complaint within the time allotted by statute. The record does not show the date when the interlocutory decree was granted, but it is apparent that it was on a day after August 13, 1951, and prior to September 10, 1951. The motion to vacate the decree accompanied by the wife's affidavit and proposed answer was dated September 10, 1951, but upon what date it was served on the husband is not disclosed by the record. The wife in her affidavit excuses her failure to answer sooner on the ground that she was greatly upset by the husband's averment he had no child with her and that as soon as she regained her normal composure she went to her attorney and finding him out of town, delayed taking further action until his return.

No abuse of discretion on the part of the court is disclosed by the record. Plainly, under the facts the court exercised its discretion ‘to promote justice and prevent fraud.’ Williams v. Reed, 43 Cal.App. 425, 185 P. 515, 518.

The order is affirmed.

HANSON, Justice pro tem.

WHITE, P. J., and DORAN, J., concur.

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