MILLER v. MILLER (1944)

The defendant appeals from four different orders made by the trial court in an action brought by the plaintiff to obtain a divorce. On May 1, 1941, the plaintiff commenced the action. In her complaint she alleged cruelty and asked for the custody of their minor child, a division of the community property, and an award of maintenance in favor of herself and the minor child. The defendant answered denying the allegations as to the community property, the acts of cruelty, and the allegations regarding maintenance. The action was tried before the trial court sitting without a jury. On December 8, 1941, the trial court entered an interlocutory decree in favor of the plaintiff. In that decree it was ordered that the custody of the minor child, Janet Elizabeth Miller, be awarded to the plaintiff. It enumerated the items of community property and provided a division thereof, and it further provided:

“4.––That defendant pay to plaintiff for her support and maintenance, the sum of $40.00 per month, and defendant pay to plaintiff for the support and maintenance of said minor Janet Elizabeth Miller, the sum of $20.00 per month and in addition pay for all reasonable and necessary medical and dental care and treatment of said minor, said payments to continue until modified, changed or terminated by order of Court.”

Said decree did not specifically provide the dates on which payments of maintenance should be made. On January 18, 1943, on motion of the defendant, the trial court entered a final judgment. Said motion was supported by an affidavit made by the defendant on the 8th day of January, 1943, which alleged among other things the making of the interlocutory decree and a recital, “All the requirements therein have been fully complied with on the part of the moving party herein and he is not in default in any thereof”. Later the plaintiff served a notice that on the 21st day of June, 1943, she would move the court for an order setting aside the final decree. That notice was supported by an affidavit of the plaintiff in which she alleged that on January 18, 1943, the defendant “was in default in the sum of $30 for maintenance and support of plaintiff as prescribed by said interlocutory decree and that at said time there was outstanding and unpaid bills for medical care and treatment of the said minor child of plaintiff and defendant in the sum of $1,298.06. That at said time the said defendant Loren F. Miller was fully aware of the nature and amount of said outstanding bills for medical care and treatment for said minor child and was fully aware of the fact that he was at that time in arrears in the sum of $30 as and for maintenance and support of the plaintiff in accordance with the terms of the aforementioned interlocutory decree of divorce made and entered by the above entitled court on the 8th day of December, 1941, and that said final decree was procured by and through the fraud of the defendant, Loren F. Miller.”

The defendant's mother, Emma E. Miller, on the 19th day of June, 1943, filed a verified petition in behalf of the defendant in which she alleged:

“That said defendant is now in the military service of the United States; that he was inducted into such service on or about the 2nd day of November, 1942, and reported for active duty therein on or about the 17th day of November, 1942. That he so entered such service as a private in the United States Army Engineers, that he was thereafter transferred to Officers' Candidate School and is now a 2nd Lieutenant, 295 Engr. Combat Bn., stationed at Camp Shelby, Mississippi.” Continuing she inserted a prayer “that all further proceedings herein be stayed as provided in the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, 50 U.S.C.A.Appendix, § 501 et seq.”

On the 21st day of June, 1943, Harvey C. Miller prepared, served, and filed an affidavit reciting the induction of the defendant into the army as above set forth and inserted a prayer that the hearing of plaintiff's said motion be continued for three weeks.

On June 21, 1943, all of said motions came on for hearing. The trial court made an order denying the petition of Emma E. Miller. It also made an order denying the motion for a continuance of three weeks. Continuing the trial court took up the hearing of the motion to set aside the final decree and made an order granting said motion.

On July 16, 1943, defendant filed his notice of appeal from each and all of said orders. On July 30, 1943, the trial court heard and granted the application of plaintiff for $50 to pay costs and $350 counsel fees on appeal. The defendant appealed from that order on August 13, 1943. At this time the appeal has been perfected. Stating that the matter has become moot, the plaintiff abandons all rights under the order dated July 30, 1943 and it becomes unnecessary for us to further discuss said order.

In his first point the defendant contends that the trial court erred in vacating the final decree because there was no substantial evidence of fraud. We find no merit in that contention. In the interlocutory decree the trial court had made orders directing defendant to make certain payments as and for the maintenance of the plaintiff and the minor daughter of the parties and for the payment of the expenses of medical and dental bills of said minor. The evidence showed there was a balance of $30 remaining unpaid on the maintenance order and that although the minor had been sick a considerable portion of the time elapsing between the date of the interloctuory decree and the final decree, and many bills had been incurred for medical expenses, the same had not been paid. There was evidence that the bills came to the plaintiff and that she sent them to the defendant, but the defendant had not paid any of them. Nevertheless on January 8, 1942, the defendant made an affidavit that all the requirements in the interlocutory decree had been complied with. Under the facts that part of said affidavit was false and constituted fraud. When on his ex parte application for a final decree the defendant presented said affidavit to the court, such act was a fraud on the court (Dunlap v. Steere, 92 Cal. 344, 346, 28 P. 563, 16 L.R.A. 361, 27 Am.St.Rep. 143) and was properly heard as on a motion made within six months from the date of the final decree. In re Johnson, 7 Cal.App. 436, 94 P. 592; Estate of Ross, 140 Cal. 282, 286, 73 P. 976; Melde v. Reynolds, 129 Cal. 308, 311, 61 P. 932; Campbell–Kawannanakos v. Campbell, 152 Cal. 201, 208–211, 92 P. 184.

Mrs. Miller testified that $30 of the maintenance had not been paid January 18, 1943. The defendant asserts that by the terms of the interlocutory decree the maintenance was not payable in advance. But the defendant did not show that the $30 had been paid June 21, 1943, the date of the order appealed from. Mrs. Miller testified bills for medical and dental service incurred between the date of the interlocutory decree and January 18, 1943, the date of the final decree, had been received and forwarded to the defendant. But he made no showing that they were paid in whole or in part.

The defendant complains there was no evidence that the charges for services and care were the necessary and reasonable value for the amounts stated in said bills. But that is to present a false issue. The action was not brought to recover on the claims of the doctors and hospitals. It was a proceeding involving the truth or falsity of the affidavit made by defendant on January 8, 1943. Manifestly it may not be asserted that all bills for all services rendered in the treatment and care of a case of pneumonia and spells of asthma were not reasonable at least in part.

The notice of appeal dated July 13, 1943, as recited above included several orders. By the order dated June 1, and the order dated June 21, 1943, the trial court refused defendant's application to grant him continuances. He complains that he was deprived of rights under “Soldiers' and Sailors' Civil Relief Act”, U.S.C.A. Tit. 50, Appendix, § 521. When an application is made for relief under said statute it has been ruled that considering all of the circumstances before it the trial court does not err in refusing to grant continuances when the defendant will not be injured. Johnson v. Johnson, 59 Cal.App.2d 375, 139 P.2d 33. That rule is specially applicable in the instant case. Mrs. Miller was present in court. Dr. Cohen, Dr. Saier, Dr. Clark, Dr. Eloesser, and also the manager of St. Luke's Hospital and the manager of Palo Alto Hospital were all available as witnesses. They were the only witnesses who presumptively had any knowledge of the bills incurred in the matter of caring for the infant daughter of the plaintiff and defendant. Excepting Mrs. Miller, no one of them was called as a witness.

The issue before the trial court was whether the defendant had knowingly presented a false affidavit in applying for the final decree. As the trial court remarked, if the affidavit was false to the amount of one dollar that was a sufficient showing to set the final decree aside. We need not discuss whether the bills amounted to upwards of $1,200. Included in that sum was the claim of Dr. Cohen for $83, which, according to the testimony of Mrs. Miller, existed at the time the divorce action was tried, was then discussed, and the payment was imposed on the defendant. The claim of the clinic was for $100. The child was ill during the year. Just how long she was confined in the clinic is a fact not shown in the record. However, Mrs. Miller testified that she sent all bills to the defendant. The issue before the court was whether the defendant had complied with all requirements of the interlocutory decree. That is whether he had paid the maintenance awarded to the plaintiff and “all reasonable and necessary medical and dental care and treatment” of Janet Elizabeth Miller. That Janet was sick of asthma and pneumonia during the year preceding the entry of the final decree is not disputed. That she had the services of several doctors is also not disputed. Whether the creditors had been paid was the specific issue before the court. As witnesses on that issue the defendant was not shown to be one, but the persons above mentioned were all available and qualified. It is therefore clear that the defendant was not prejudiced by the fact that the issue was tried in his absence. No claim was made that part payments had been made. The claim at issue was solely whether obligations had been incurred which had not been met.

As we understand the defendant he contends that the affidavit of Mrs. Miller was insufficient to support the order. We think not. She served a notice that on the 21st day of June, 1943, she would make a motion to set aside the final decree. True it is that she did not in that notice state the grounds of her motion. However she did state, “Said motion will be made upon this notice of motion, the affidavit of Marion M. Miller which is attached hereto, and all the records, files and pleadings in the above entitled matter.” In her affidavit so attached she set forth the acts of fraud on which she relied. Those papers warranted the trial court in hearing said motion. 18 Cal.Jur. 654; Reher v. Reed, 166 Cal. 525, 527, 137 P. 263, Ann.Cas.1915C, 737; Savage v. Smith, 170 Cal. 472, 474, 150 P. 353; Hecq v. Conner, 203 Cal. 504, 506, 265 P. 180.

The orders dated June 1, June 21 and June 28, 1943, and appealed from on July 13, 1943, are affirmed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concur.