LITVINUK v. LITVINUK (1944)

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, in the absence of a defense of recrimination. 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 desertion. 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. There was a counter affidavit of plaintiff's attorney which added no material facts. Again, there was no affidavit by plaintiff that he had not been denied a divorce in Pennsylvania shortly before he came to California. The motion to vacate the decree was duly presented, was denied, and defendant appeals from that order. She gave notice of appeal from the judgment and from her motion to reopen the case and for a new trial, but these latter appeals were taken too late and must be dismissed.

Our conclusion as to the order refusing to vacate the decree is that it should be reversed. We do not agree that defendant had a right to successive continuances of the trial until her attorney had finished the trial in which he was engaged, regardless of the time it might take. He appears to have believed she had an absolute right to such continuances and that he owed the court little cooperation in arranging for a satisfactory trial date. He represented but one of many defendants jointly charged with murder, and the trial was one which was bound to and did last for several months. In his affidavit for a continuance he made no statement as to when he expected to be through with the criminal trial and the record does not show when it was finished, nor does it show that he advised defendant of the order that she would have to obtain other counsel for the trial on December 4, if he was still engaged in the criminal trial, or that he made any effort to assist her in obtaining other counsel, although he knew, from the notice of the continuance which was served on him November 23, that the court had made such day of trial either in the calendar department or the trial department, and it was not shown that he made any request to be excused from the criminal trial long enough to explain his position to the trial judge. It is reasonable to believe that if he had done so, some plan would have been arranged under which defendant could have been represented at the trial by him or someone else. His noncooperative attitude was later manifested by his failure to be present on December 16 to urge his motion for reopening of the case. In view of the ruling of the acting presiding judge that the case would have to be tried on December 4, we find little justification for Mr. Coviello's assumption that the court would continue to postpone the trial until he had finished with the trial of the criminal case.

But in all of this there was presented only a situation which is a common one in the trial courts. It is of daily occurrence that through amenities of counsel or the direction of the judges the trial calendars are rearranged with due regard for the convenience of attorneys who are engaged in trial. These situations do not involve questions of law but only those of good court administration, and it is seldom that they cannot be worked out satisfactorily and without furnishing grounds for appeal. The instant case, for some reason, had been advanced for early trial. There may have been a good reason why it was given precedence over other cases but the record does not show it. There is no policy of the law which we are aware of that calls for the granting of speedy divorces. Plaintiff was not paying his wife any alimony and if he wanted a divorce in a hurry he was only in the position of most others who sue for divorce. We think the court should have recognized that his insistence upon an immediate trial, when it appeared that his wife would be without benefit of counsel, reflected the common attitude of litigants in divorce cases, and we cannot see that it would have been difficult, or unfair to the impatient plaintiff, for the court to arrange for the trial of the case so that defendant would be represented. However, we are not placing our reversal upon the failure of the court to do this. Our only purpose in discussing the matter is to point out the need for greater cooperation in arranging for suitable trial dates than was manifested in this case.

The ground of our reversal is that with the defendant in court without an attorney, the trial judge should have questioned her concerning the truth of the charges which her husband had made against her. It is true that she was reluctant to testify in the absence of her attorney, but the record shows that that was because he had instructed her to state that she could not proceed with her defense in his absence. She is of Polish nationality; her husband is a Russian. She had come from Philadelphia with her son to present her defense and the son attended court with her as a witness. The husband had testified that the son struck him and that defendant ordered him out of the house in 1934. A transcript of the evidence is before us and we have read it. We think the notice of motion to vacate the decree was broad enough to include the evidence that had been received, as a part of the proceedings in the case upon which the motion would be based. The matters that had been testified to were known to the court and necessarily must have been given some consideration in the exercise of the court's discretion in ruling upon the motion. We quote in full the testimony of Mary Dimitroff, which was offered to meet the demands of section 130 of the Civil Code that no divorce shall be granted upon the uncorroborated statement, admission or testimony of the parties:

“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.”

The court was being asked to dissolve a marriage of a man and woman who had lived together for 17 years, and was conducting a trial for the purpose of ascertaining the truth as to the reasons for their separation. The duty of ascertaining by satisfactory proof whether the wife had given the husband cause for divorce rose above mere technicalities of procedure. The court should be satisfied before granting a decree of divorce that the ends of justice will be served thereby and that the court is not being imposed upon by the assertion of unfounded grounds for divorce through the collusion of the parties or otherwise. The state is interested in the institution of marriage and the preservation of family ties, and the dissolving of them involves a judicial determination. Nothing in modern times has brought greater discredit upon the judiciary as a department of government than the granting of so–called mail order divorces and other procedure under which some courts are suspected as being little better than vending machines for the issuance of divorce decrees. Not that this is such a case. But it is a case where the plaintiff, after testifying briefly, offered as corroboration of his charges, testimony that was no corroboration at all. Following this the judge stated to the defendant, “You get up on the stand and I will be your attorney,” and then asked her, “Do you want to tell me your side of the case?” to which defendant answered, “I can't tell it without my attorney.” She did not decline to testify; she was simply at a loss as to what to do. There was no reason to believe that she would not have answered willingly any questions propounded by the court. She had come from Pennsylvania for that very purpose and it would have been a simple matter for the court to put her at her ease and to learn her side of the story. The son Paul, who had been accused of striking his father at the time of the alleged separation, was in court with his mother to act as her witness. The fact that plaintiff had failed to produce any corroboration of his charges of desertion and cruelty made it the plain duty of the court to question the son, and if he failed to corroborate his father's testimony, to deny plaintiff a decree. Not only did the court fail to do this, but it granted a decree upon plaintiff's uncorroborated testimony. It is true that we are not considering an appeal from the judgment, because the attempted appeal was taken too late. But the glaring insufficiency of the evidence to justify a decree in plaintiff's favor emphasizes the court's error and abuse of discretion in denying the motion to vacate. The decree should have been vacated because it never should have been granted. Upon the case made by plaintiff, and without any evidence for the defense, the court should have refused a decree in favor of the husband.

There is another reason why the motion should have been granted. The mere suggestion to the court that plaintiff had been denied a divorce in Pennsylvania shortly before coming to California should have caused the court to inquire fully into the facts. 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. When it was represented by defendant's affidavit and her verified cross–complaint, both of which stood unchallenged, that plaintiff had been denied a divorce in Pennsylvania, the decree should have been vacated for the express purpose of ascertaining whether a fraud had been perpetrated upon the court, even if no other ground existed for vacating it. It does not appear why the Pennsylvania decree had not been pleaded by answer but, considering the manner in which defendant's case had been handled by her attorney, it will not do to say that her representations with reference to the Pennsylvania case came too late. Situations which suggest that the court has been imposed upon involve far more than the rights of the parties in the premises. They call for the assertion of the dignity and independence of the court and for prompt and effective action to determine whether the court has been misled by the concealment or misrepresentation of material facts. Divorce cases have been known to present such situations. It would be scandalous and a reproach to the administration of justice to permit 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. Such conduct would be of too grave concern to be put aside upon the ground that knowledge of the fraud had not been brought to the attention of the court promptly. It comes in time if the court still has the power to correct any mistake that has been made. The failure of the court to make such an inquiry is not excused by reason of the ignorance and inexperience of a litigant or the mistakes or derelictions of his counsel.

The order denying the motion to vacate the judgment is reversed. The appeals from the judgment and the order denying the motion to reopen the case and for a new trial are dismissed.

SHINN, Justice.

DESMOND, P. J., and PARKER WOOD, J., concur.