Wright v. Wright

This is an appeal from certain parts of a judgment entered on December 9, 1955, which pertains to a property settlement agreement, and which awards the defendant and cross-complainant permanent alimony and awards attorney’s fees to her counsel.

The plaintiff, cross-defendant and appellant will hereinafter be referred to as the husband, and the defendant, erosseomplainant and respondent will hereinafter be referred to as the wife.

A résumé of the facts is as follows: The husband and wife were married on or about September 14, 1937, and separated about April 1, 1954. No children were born as the issue of the marriage. The husband brought an action in divorce July 15, 1954. The wife filed an affidavit for an order to show

The order to show cause was heard on August 12, 1954. At that time there was introduced into evidence an affidavit of Dr. Eeginald H. Smart, M.D., who specialized in diseases of the chest. The affidavit of the doctor set forth that Mrs. Wright first became ill at the age of 16 years when she had tuberculosis of the right kidney, which kidney was removed surgically; further, that in January, 1941, she was found to have tuberculosis in both lungs, and in March, 1942, was admitted to a sanatorium where she remained as a patient. Further, that in July, 1942, her right lung was collapsed by means of air refills, and in February, 1943, it was necessary to collapse the left lung by the same method. That she was continued on bilateral pneumothorax treatments in the sanatorium, and after discharge, the refills were administered in the office of the affiant, until June, 1948, when the treatments were discontinued. She had periodic checkups ever since that time. The affiant doctor diagnosed her ailment as tuberculosis of the bladder and kidney, arrested and far advanced, bilateral pulmonary tuberculosis arrested; further that he had allowed her to work part-time as a hat check girl, but that he felt that she would never be able to work full-time or engage in any occupation which entails any degree of physical, emotional or mental strain. Also, that she had had intensive treatment for 10 years before the disease was brought under control, and that any time she was subjected to undue stress or strain the disease might easily become reactivated and a relapse ensue; that it was imperative that she continue to live a sheltered life and not be expected to become self-supporting.

On August 16, 1954, the court commissioner filed his find

On August 26, 1954, the husband filed a first amended complaint wherein he alleged extreme cruelty on the wife’s part and that there was community property belonging to the parties consisting of a single-family residence located in North Hollywood, and an income-producing property which consisted of a four-apartment building located in Van Nuys, and two automobiles and some furniture and furnishings. The husband requested judgment for a divorce and all of the community property.

On December 10, 1954, the wife filed an answer to the first amended complaint, wherein she set forth that the community property consisted of the two automobiles mentioned by the husband, some securities and some other items, and then set forth that the two parcels of real property were not community property, but were at all times owned in joint tenancy by the parties. She denied any acts of cruelty or other wrong doing. On the same date she filed a cross-complaint wherein she alleged that the real property was owned as above set forth in the answer to the first amended complaint, and requested that all of the community property be awarded to her. She further alleged that for many years she had been treated for tuberculosis, that she was unable to work full time and to support herself and is constantly under the care of doctors; that she had no funds for support and maintenance and for costs and attorney’s fees. She further claimed that the husband had physically assaulted her and that the court in this action had compelled him to remove from the residence place on or about August 21, 1954, and restrained him from harassing her.

The husband filed an answer to the cross-complaint on December 20, 1954, wherein he admitted the allegations with reference to the community property holdings, and that the real property was owned by them as joint tenants. With reference to the allegations of her health, he denied the same except

On February 4, 1955, an order to show cause filed by the husband for a modification of the support and maintenance allowance theretofore ordered came on to be heard. The court ordered that the order of August 12, 1954, be modified to provide that the husband pay to the wife $85 per month for her support and maintenance, and in all other respects the previous order was to remain in full force and effect.

On May 25, 1955, after considerable negotiations between the parties and their respective attorneys, a property settlement agreement was entered into. Under the agreement it was set forth that it was the desire of the parties that their community and joint property be divided and “provision made for partial support of the wife.” The husband was to pay to the wife $50 per month for six months, commencing July 1, 1955, and $25 per month for six months commencing January 1, 1956, such “payments to be the only payments made by husband to wife as and for the support and maintenance” of the wife. The wife was to receive the family residence in North Hollywood, the furniture and furnishings located therein, a 1951 Pontiac automobile, one-half of the Blair Holding Company stock in the possession of the husband and one poodle dog, and in addition thereto, $2,500 in cash. The husband was to receive the income property located in Van Nuys, a 1949 Pontiac automobile, all of the furniture then in his possession and one airedale dog. Each released the other from any claims arising out of the marital relation, and each released the other from any right to support and maintenance or otherwise, and each was to pay his or her own debts, and the husband was to pay to the wife’s attorney a fee of $255 in addition to the fees previously allowed.

On June 29, 1955, the wife caused a letter to be directed to the husband through his attorney, wherein it was set forth that the wife had recently been to the doctor and that he, the doctor, had informed her that a spot appeared on her lung and that she might be incapacitated. It was further set forth in the letter that the doctor advised that under the circumstances, the wife would be unable to support herself, and further that he urged that she not enter into any agreement

At the time of the sending of the letter above mentioned all executory provisions of the agreement had been performed except the monthly payments to be made for her support and maintenance, and as of that date the wife was able to restore everything of value received by her under the agreement.

On July 6,1955, the husband, through his attorney, by letter, rejected the rescission and elected to stand on the agreement. In this letter it was stated that “the basis of settlement was the valuation of the equity in the real properties as approximately equal”; it was further set forth that the wife had been gainfully employed and that there were no children and that the agreement “was eminently fair”; that it would not “be fair under the circumstances to surcharge Mr. Wright with her care.”

The husband did then, on November 15,1955, file an amendment to his first amended complaint wherein he alleged and set forth that since the filing of the first amended complaint the husband and wife had entered into a full and complete property settlement agreement which provided for a division of the community property and a cash settlement and other payments in lieu of support, maintenance and alimony, that the agreement was fair and equitable, and requested that the agreement be approved and made a part of the decree, and that the parties be ordered to comply with its terms.

The wife answered the amendment by admitting that an agreement was executed and alleged that it had been rescinded. She then set forth that her physician had made a

At the trial no evidence was presented by the husband on his amended complaint, excepting in connection with the validity of the agreement, the circumstances under which it was drafted, the earnings and expenses of the husband, the extent and nature of the community property and the joint tenancy property, and the condition of the wife’s health and her knowledge thereof. The wife testified that she had, for about a month previous to the trial, been engaged in a market, wrapping meat, and had quit because of exhaustion, suffering and a breaking down of her health; that she had been examined by the doctor a few days after the agreement was signed and the doctor said he saw a spot on one lung and that he was concerned about it, that it was a new development; that she then called the husband and told him about it, and stated that from what the doctor had told her, she wanted “the alimony get aside so that the Court could help me decide what should be done so that I could be taken care of.” She also related how the husband had slapped, knocked her down and choked her, and stated that he wanted a divorce, and further that when he consumed too much liquor he became foul and vulgar and hit her.

Dr. Reginald H. Smart testified that he specialized in diseases of the chest, and testified as to the matters which were set forth in his affidavit in the order to show cause proceeding on August 12, 1954; further, that she came to him from Northern California, where she had been a patient in a sanatorium for about two and a half years. He stated that after the kidney was removed the tubercular condition developed in both lungs; that both lungs had been partially collapsed by means of air refills and that when she first came to

The court found that the community property consisted of household furniture and furnishings, a 1949 Pontiac automobile and a 1951 Pontiac automobile, certain Blair Holding Company stock and two dogs, and that this property had been fairly and equitably divided by the agreement. Also, it was found that the real property was owned by the parties as joint tenants, and that there was no community property interest in any such real property, and no order was made

It is clear that the law favors the making of agreements between husband and wife if it is accomplished fairly and equitable, untainted by fraud, collusion, undue influence or the like. (Civ. Code, §§ 158, 159; Hogarty v. Hogarty, 188 Cal. 625 [ 206 P. 79 ]; Murray v. Murray, 28 Cal.App. 533 [ 153 P. 248 ]; Anthony v. Anthony, 94 Cal.App.2d 507 , 512 [ 211 P.2d 331 ].) As said in Adams v. Adams, 29 Cal.2d 621 , at page 624 [ 177 P.2d 265 ] : “A property settlement agreement, therefore, that is not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court.” In the same case it was said (pp. 624-625) : “The parties, upon separation, may agree to provide for support and maintenance in a variety of ways, which generally fall into three categories. The first includes contracts in which the support and maintenance provisions are in the nature of alimony, whether in lump sum or monthly payments, and are separable from the provisions that divide the property. The contract may even provide solely for support and maintenance without reference to a division of property. These contracts, if equitable, are enforceable even though not presented to the court in a divorce action. (Sanborn v. Sanborn, 3 Cal.App.2d 437 , 442 [ 39 P.2d 830 ], . . .) If presented to a court in an action for divorce the court has the power to modify the provisions for alimony before or, if the provisions are incorporated in the decree, after judgment in accord with its power over alimony generally. (Hough v. Hough, 26 Cal.2d 605 , 613 [ 160 P.2d 15 ]. . . .)

“The second category includes, among others, contracts in which the ‘support and maintenance’ provisions are not in the nature of alimony but are part of the division of property. This category also includes contracts that provide solely for the payment of monthly or lump sums ‘in lieu of community property.’ Such contracts must be treated like other prop -

“The third category includes contracts in which the wife waives all support and maintenance, or all support and maintenance except as provided in the agreement, in consideration of receiving a more favorable division of the community property. The court cannot add a provision for alimony to such contracts without changing basically the agreement of the parties as to the division of their property.”

It appears to us that in the instant case there can be no doubt that the community property was divided in a substantially even manner. The court had nothing to do with dividing the real property owned and held by the parties as joint tenants. It further appears to us that the provision for support and maintenance, as it is set forth and provided in the agreement in question, is separable from the provisions having to do with the property division—in short, that the agreement in the instant case is not what is referred to as an “integrated bargain.”

In the case of Moog v. Moog, 203 Cal. 406 [ 264 P. 490 ], the husband-appellant agreed to pay the wife-respondent, in

“With reference to ordinary contracts, the position of appellant is sound, undoubtedly; but in actions for divorce there is a very large discretion vested in the trial court in the allowance of permanent support for the wife, where she is granted a divorce, even in the face of contracts of settlement between the parties. Such contracts must be subjected to the examination of a court in the divorce action and derive their sanction from a decree made by the court with knowledge of all the facts. (Citing cases.) The rule stated in Corpus Juris, volume 19, page 218, is to the effect that where provision has been made by the husband for the wife, by separation agreement, the wife is not entitled to temporary alimony, unless she offers to return what she has received or shows that the amount provided for in the agreement is not sufficient for her needs. The latter condition existed in the instant case. ’ ’

The court then concluded the case by saying (at page 409) : “It was this unfortunate condition, doubtless, which influenced the court in making the award of alimony in addition to what had already been received by plaintiff. Under the circumstances, we see no reason to interfere with the exercise of discretion vested in the trial court.”

In the instant case the husband brought the agreement before the court in his amendment to his first amended complaint, and asked that it be approved. The wife set forth her reasons why it should not be approved and as a consequence, the matter became a part of the issues to be litigated. In other words, the parties asked the court to adjudicate the

The matter of the disposition of the community property was no particular problem in the case before us because each took one dog, one automobile, the furniture or furnishings in his or her possession, and an equal part of the securities. There was little, if any problem about the real properties, in that each of them admitted that the properties were held and owned by them as joint tenants. The court, in any event, had no jurisdiction to award the real property to either party. (Fox v. Fox, 18 Cal.2d 645 [ 117 P.2d 325 .) Bach of the real properties was encumbered. The Van Nuys property produced sufficient income to pay the installments on the debt against it, and for many months at a time, produced monies over and above such indebtedness. The North Hollywood place produced no income. In the affidavit of the wife on the order to show cause in the first instance she set forth that the gross value of the Van Nuys apartments was $28,000, with a debt of $15,460 against it, or a net value of $12,540; that the North Hollywood residence had a gross value of $16,000, with a debt of $6,500 against it, or a net value of $9,500. The husband set forth in his answering affidavit that his net financial worth was $24,000 (community property) and made no statement concerning the real property belonging to the husband and wife. Presumably, he was satisfied with what the wife had set forth in her affidavit as to the values. In any event, he did nothing and said nothing about her statement of values.

In an affidavit for an order to show cause in re attorney’s fees in March, 1956, the wife set forth that the residential property had a net value of $9,000, and the apartment house property had a net value of $12,000. The husband made no reply to that claim of valuation, as set forth by the wife. It would seem that if there was any unfavorableness in the division of the real property, it was in the husband’s favor, and against the wife. In any event, there is nothing from the transfer of the real properties, or from the division of the community property, that would lead us to believe that it was contemplated that the agreement was an integrated bargain. No one seems to contend that the wife got any advantage out of any transfer.

The agreement recites, following the provisions for the

No place is it set forth in the agreement that the money payments are to be “in consideration of the property division.” We believe that the court properly proceeded to reject the agreement as to support and maintenance and grant alimony upon a reasonable basis. (Adams v. Adams, supra; Puckett v. Puckett, 21 Cal.2d 833 [ 136 P.2d 1 ]; Alexander v. Alexander, 88 Cal.App.2d 724 [ 199 P.2d 348 ].)

In this case the trial court had before it “the agreement, the circumstances under which it was made and the nature and value of the property as related to its division and the amount of the periodic payments giving consideration to the statutory rules on the subject. ’ ’ (Adams v. Adams, supra.) On the appeal, we must take the facts most favorably and strongly in favor of the respondent, including all reasonable inferences therefrom. (Cameron v. Cameron, 85 Cal.App.2d 22 , 27 [ 192 P.2d 89 ].) Furthermore, the award of support and maintenance to the wife is a matter of discretion of the trial court, and it must be upheld unless there is no substantial evidence to support it, or in other words, that there is a clear abuse of discretion. (Horton v. Horton, 18 Cal.2d 579 , 583 [ 116 P.2d 605 ].)

In determining the matter the court was not required to consider that the wife could sell her home and thereby secure funds to live on. “The law is settled in California that when the wife is the owner of a nonincome producing property she is not required to have recourse to such property for her support before seeking support from her husband.” (Buehler v. Buehler, 73 Cal.App.2d 472 , 475 [ 166 P.2d 608 ], See also Farrar v. Farrar, 45 Cal.App. 584 , 586 [ 188 P. 289 ].) Substantially the same thing may be said about the allowance of attorney’s fees, as has been said about the support for the wife. (Heck v. Heck, 63 Cal.App.2d 470 [ 147 P.2d 110 ] ; Westphal v. Westphal, 122 Cal.App. 388 , 390 [ 10 P.2d 122 ]; Fallon v. Fallon, 83 Cal.App.2d 798 [ 189 P.2d 766 ].)

We can see nothing in the conduct of the wife which would constitute a waiver of her right to insist or stand upon

It is true that Finding Number 7 was not entirely supported by the evidence. The doctor, apparently, did not locate the actual heart condition until a few days before the trial in November, and not in June or July. However, the doctor did examine the wife shortly after the agreement was signed, and he did advise the wife of a new development. There is no doubt that the finding is, in the main, substantially supported by the evidence, if not literally and entirely so. In American Nat. Bank v. Donnellan, 170 Cal. 9 , 15 [ 148 P. 188 , Ann. Cas. 1917C 744], it was said; "... that it is only when a judgment rests upon some particular finding for its validity and support that lack of sufficient evidence to support such finding, . . . will necessitate a reversal of the case. ’ ’

It would, in our opinion, be unconscionable to hold, under the circumstances of this case, that the wife should be compelled to accept the terms of the agreement for her future support and maintenance. The trial court, quite properly from the evidence before it, held that the agreement was, as to her, unfair and inequitable.

The judgment is affirmed.

White, P. J., and Doran, J., concurred.

A petition for a rehearing was denied February 20, 1957, and appellant’s petition for a hearing by the Supreme Court was denied April 5, 1957. Carter, J., Traynor, J., and Schauer, J., were of the opinion that the petition should be granted.