In Re Marriage of Harris

Roxie Harris (wife) appeals from an order denying her motion to set aside her default and a default judgment in this marital dissolution proceeding brought by Bernie E. Harris (husband).

Husband's request for default, filed in January 1976, was accompanied by an affidavit stating that notice had been mailed to Stephen Redner, an attorney whom wife had consulted. Mr. Redner returned the documents to husband's attorney, informing him that he had not been retained by wife but that he had advised her that her default would be taken. The returned documents were then sent by husband's attorney to wife at her residence, but no affidavit was filed evidencing this second mailing.

Wife contends that since husband failed to support his request to enter default with a declaration showing that a copy of the request had been mailed to wife, the resulting default judgments were invalid.

Code of Civil Procedure section 587 [1] requires that an application for entry of a default (Code Civ. Proc., § 585, subds. 1, 2; § 586, subd. 3) or of a judgment (Code Civ. Proc., § 585, subd. 3) be accompanied by an affidavit showing that a copy of the application has been mailed to…