Kern v. Kern

In Kern v. Kern (1968) 261 Cal.App.2d 325, the trial court entered a final decree of divorce nunc pro tunc, on motion of the administrator of the deceased wife's estate. After wife obtained an interlocutory decree of divorce, she suffered a heart attack. Husband and wife lived together eight or nine days before she suffered a severe stroke and another heart attack, leaving her partially paralyzed and mentally incompetent. Wife spent the rest of her days under hospital or rest home care. (Id. at pp. 327, 330.) A major question before the court was whether the parties had reconciled. The conflicting declarations revealed a sufficient factual basis for finding that the parties did not intend to reconcile permanently. (Kern, supra, 261 Cal.App.2d at pp. 331-332.) On the matter of justification for retroactive entry of the decree, husband argued there was no showing of mistake, negligence or inadvertence. Certainly there was no such showing on wife's part because her mental and physical illness prevented her from comprehending the marital situation or acting to enter judgment. (Id. at pp. 333, 335.) However, the person who had served as conservator of the wife's person and estate supplied declarations stating that his delay in seeking a final decree was based initially on the hope that wife's condition would improve to the point where he could discuss the situation with her, and then on the press of other business when her condition deteriorated. (Id. at pp. 333-334.) Upholding retroactive entry of the final divorce decree, the reviewing court concluded husband did not sustain his burden on demonstrating an abuse of discretion where (1) the trial court's implied finding of inadvertence on the conservator's part was supported by his declarations; and (2) the court also found, on conflicting but substantial evidence, that there was insufficient reconciliation to justify denying the decree. (Id. at pp. 336-337.)