Kelly v. Kelly

Plaintiff and defendant are husband and wife, and the parents of two minor children. Differences arose between them, and although they continued to reside in the same home they had severed the marital relationship. On March 30, 1928, they entered into a written property settlement agreement, and about two years later, to wit, on December 28, 1929, plaintiff brought this action to have the agreement annulled. The judgment was that he take nothing by his action, and he has appealed.

It appears that subsequent to their marriage the parties acquired several pieces of real estate, which, shortly prior to and as part of the property settlement, they divided and for which they exchanged deeds. It also appears that plaintiff’s mother, who at the time of the making of said agreement, was well advanced in years and ill, was beneficiary of one or more trust estates then being administered in and pursuant to the laws of the state of Pennsylvania, and that in the event of her death the interests she possessed in said trust estates would descend to plaintiff. It was in the light of these present and future conditions that said agreement

In October, 1928, some seven months after the agreement was executed, Mrs. Kelly, the defendant, instituted divorce proceedings in which she pleaded the making of said property settlement, and asked, among the other relief prayed, that said agreement, a copy of which was attached to the complaint, be made part of the decree of divorce. Answering the complaint, Kelly denied certain allegations thereof and asked that said agreement be declared void upon the ground that it was “unconscionable” and obtained by his wife by means of threats to inform his mother of the

The first point made on appeal is that the agreement is void for uncertainty, unintelligibility and indefiniteness “as to the time of performance and subject matter contained therein”. The specific objections made in this regard are that the agreement contains no provision for the support of the children, that it cannot “be ascertained what appellant and respondent intended to convey and receive respectively, nor can it be determined when said agreement should become effective ... or terminate or be performed, and further that said agreement shows on its face that there was no definite meeting of the minds of the parties thereto as to the subject matter ...” We find no merit in any of said objections. Plaintiff cites no authority to sustain his view that the absence of a provision for the support of the children destroys the validity of a property settlement agreement between husband and wife; and even if such were the law the agreement in question conforms to that requirement because as will be noted, under its provisions, a large share of said trust estate which will eventually descend to plaintiff was assigned to the children. Furthermore it is held generally, in divorce cases, that such agreements are not binding upon the trial court either as to the matter of the support of the children (Lewis v. Lewis, 174 Cal. 336 [ 163 Pac. 42 ]), or with respect to the parties themselves (Chadwick v. Chadwick, 95 Cal. App. 690 [ 273 Pac. 86 ]); and that if in the rendition of its decree the court believes the agreement to be unjust or inequitable it may reject it in whole or in part. (Moog v. Moog, 203 Cal. 406 [ 264 Pac. 490 ].) The remaining objections to the agreement based on the charges of uncertainty and indefiniteness are answered by the terms of the agreement. As stated, the evidence shows that the subject matter of the settlement was plaintiff’s expectancy in trust estates then being administered, and necessarily it was impossible at the time the agreement was drawn and executed to state with any degree

Plaintiff’s second point is that the agreement was void because, as he asserts, he “entered into same under a mistaken knowledge of law, of his rights and the legal effect of the document”. In substance it was so alleged in his complaint and denied in the answer; and after taking evidence upon the issue the trial court found adversely to plaintiff’s claim. As will be observed, the point now urged is in effect an attack upon the sufficiency of the evidence to support such finding. However, the appeal was taken pursuant to the alternative method provided by section 953a of the Code of Civil Procedure, and plaintiff has utterly failed to print in his brief as required by section 953c of said code any evidence whatever relating to said issue, nor has he called attention to any part of it by transcript reference. And it has been repeatedly held that under such circumstances the reviewing courts are not called upon to look to the typewritten transcript to determine whether ground exists for reversal. (Barker Bros. v. Joos, 36 Cal. App. 311 [ 171 Pac. 1085 ]; Dahlberg v. Dahlberg, 202 Cal. 295 [ 260 Pac. 290 ]; 2 Cal. Jur. 650, 651.) Notwithstanding plaintiff’s failure to comply with the law and rules of court in this respect, we have examined the record and find ample evidence to support the trial court’s finding, it being shown by the evidence that the agreement was drawn by a competent lawyer, who, before plaintiff signed the same, fully explained to him the nature and legal effect thereof.

Lastly, plaintiff contends that “there is no guarantee or assurance that the supposed object of the parties in executing this agreement, to-wit, the provision for the care and maintenance of the minor children would be carried out or accomplished”, the argument made in this behalf being that

Tyler, P. J., and Cashin, J., concurred.