Fred C. Struckmeyer, Jr., of Phoenix, for appellant.
Ralph Barry, of Phoenix, for appellee.
De Concini, Justice. La Prade, C. J., and Udall, Stanford and Phelps, JJ., concurring.
De Concini, Justice.
[71 Ariz. 195] Appellee, Isaac Mason Clark, hereinafter called plaintiff, and appellant, Dora F. Clark, hereinafter called defendant, were both in the military service at the time of their marriage on December 26, 1944 in New York City. The parties lived together week-ends until the 21st day of January, 1945, a period of almost 4 weeks, at which time husband and wife parted and have since never lived together. Subsequently, apparently the latter part of 1945 or early in 1946, plaintiff was transferred to Williams Air Force Base, Arizona. He commenced this action for divorce on March 9, 1948 in the Superior Court of Maricopa County, Arizona, alleging wilful desertion at Trenton, New Jersey, by the defendant on January 21, 1945 and continuing for the [71 Ariz. 196] term of one year next preceding the commencement of this action.
Service of summons was by publication based on an affidavit of defendant's nonresidence. Summons and complaint were mailed to defendant but they were returned undelivered. Upon her failure to appear, default was duly entered. The cause was heard and judgment decreeing dissolution of the matrimonial bonds entered on May 15, 1948.
Approximately 7 months after entry of judgment and after plaintiff had been transferred to duty on Guam in the Marianas Islands, the defendant, appearing for the first time on the 8th day of December 1948, moved the court to set aside the judgment and for a new trial pursuant to section 21-1309, A.C.A. 1939, which provides in part as follows: "When judgment has been rendered on service by publication, and the defendant has not appeared, a new trial may be granted, upon the application of the defendant, for good cause shown by affidavit, made within one (1) year after rendition of such judgment. * * *"
Defendant filed an affidavit meeting the requirements of the above statute by denying the charge of desertion stating, "* * * that affiant has always been and is now willing to live with plaintiff as husband and wife, and has not in the past and does not now refuse to so cohabit with him, and at no time since the inception of their marriage has affiant deserted the plaintiff." Oral arguments on this motion for new trial were heard and the motion denied on the same day, February 21, 1949.
The denial of this motion forms the basis of defendant's first assignment of error, it being contended that the trial court thereby committed an abuse of judicial discretion in that good cause was shown by affidavit and defendant was entitled to establish her defense by evidence.
We are of the opinion that the trial court did abuse its discretion by not granting defendant a new trial upon her showing. Evans v. Hallas, 64 Ariz. 142, 167 P.2d 94; Southwest Metals Co. v. Snedaker, 59 Ariz. 374, 129 P.2d 314; Collins v. Streitz, 47 Ariz. 146, 54 P.2d 264.
The second assignment of error is that plaintiff in his action failed to establish the elements of desertion. The third assignment, related to the second, is that there is no corroboration concerning plaintiff's ...