Fernandez v. Fernandez

At the trial of the within divorce action, the court below first heard and decided the property issue; ruling in favor of the validity of an antenuptial agreement and declaring no community property to exist, it then heard the remaining matter as a default and granted plaintiff wife an interlocutory decree of divorce. Among other things, the judgment directed the payment of $1,500 monthly alimony, certain incidental expenses, custody of and support for a minor son and an emancipated daughter, $4,000 additional attorney’s fees, and $1,463 costs; it awarded certain property to defendant husband as his sole and separate property. From the judgment plaintiff appeals. Predicated on the alleged invalidity of the antenuptial agreement, plaintiff argues error in the finding that there is no community property; and asserts the inadequacy of the awards for alimony and additional attorney’s fees. Basically these points are directed to the sufficiency of the evidence.

The parties were married in Mexico City in 1939; they have since resided in Los Angeles. The facts surrounding the execution of the antenuptial agreement, an integrated part of the marriage ceremony in Mexico, are in considerable dispute ; but the parties agree that where the law of Mexico in 1939 is applicable and it is necessary to take judicial notice (Code Civ. Proc., § 1875) thereof, the court may refer to the

Under Mexican law, marriage is a civil contract within the exclusive jurisdiction of the civil authorities (Constitution of Mexico, art. 130), in the instant case, the Office of the Civil Registry in Mexico City (Civil Code, art. 35, p. 10). Persons intending to marry are required to appear before a clerk of the Office of the Civil Registry and make a written application for marriage (Civil Code, art. 97, p. 25), at which time they must give the clerk all statistical data, file the necessary certificates and select a date for the ceremony. If one of the parties is a minor, a parent or legal guardian must be present, sign and approve the marriage application (Civil Code, art. 100, p. 27). There are two systems under which parties may marry (Civil Code, art. 178, p. 45)—the separation of properties regime, and the conjugal society regime (Civil Code, art. 179, p. 45). Under the separation of properties each spouse preserves the full ownership and administration, not only of the properties already acquired prior to the marriage, but of after-acquired property as well, including the product of his or her skill and labor (Civil Code, arts. 207, 213; pp. 50, 51, 52); under conjugal society the parties pool their resources, and ownership of all property is vested in both (Civil Code, art. 194, p. 48). At the time the parties make application for marriage they must elect under which regime they wish to marry and so advise the clerk; under either regime the parties must, before the marriage and in accord with their election, enter into an agreement with respect to their property rights presently existing and to after-acquired property (Civil Code, art. 98, par. V, p. 26). When application for marriage is made, either the clerk of the Office of the Civil Registry inquires of them under which system they

In arguing that the trial court erred in finding that there is no community property, appellant asserts that the ante-nuptial agreement wherein the parties submitted themselves to the regime of separation of properties, was not read and explained as required by Mexican law; that because of the difference in age and experience of the parties defendant owed a fiduciary duty to her, which he violated; that she did not knowingly consent to a marriage under the separate properties regime and was unaware of the consequences of such an agreement; that the agreement was not executed according to Mexican law; and that the finding is against the great weight of the evidence (A.O.B., pp. 7-8).

Inasmuch as the issues arising out of this contention are mainly factual, almost every material part of the testimony is in dispute, and plaintiff relies only on the evidence favorable to her, we point up the fundamental rule that this court has “no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom”

Applying the foregoing we deem the findings that “there is no community property” (par. IV); “no confidential relationship existed in fact or in law between plaintiff and defendant, nor was defendant guilty of any fraud, deceit, imposition or overreaching” (par. XIV) ; and that “each, every and all of the necessary and requisite steps leading up to the preparation and execution of the antenuptial agreement . . . were performed in full compliance with the Constitution and laws of Mexico” (par. XIII), to be adequately and fully supported by the evidence.

Plaintiff, 19 years old and a national and resident of Mexico, and defendant, 45, a Peruvian national residing in Los Angeles, became engaged in December 1938. Plaintiff lived with her mother, her only living parent and guardian, in Cuernavaca, Mexico. On January 16,1939, in the company of plaintiff’s mother, the parties appeared in the Office of the Civil Registry in Mexico City and signed the written application for marriage (Exhibit A)—it was also signed and approved by plaintiff’s mother as plaintiff’s parent and guard

The property with which defendant was possessed at the time of his marriage, as listed in the agreement, was valued at approximately 170,000 American dollars, and 60,000 Peruvian soles; his debts amounted to approximately $53,000; at the time of the within trial his net worth was approximately $1,000,000. The prenuptial agreement (Exhibit F) provided, among other things, that the marriage of the parties “shall be contracted under the rule of absolute separate property” whérein" each of the parties “shall retain the ownership and

Conceding that in California antenuptial agreements will be upheld where validly entered into, and predicating her argument on the rule that a confidential relationship is presumed to exist between husband and wife (In re Cover Estate, 188 Cal. 133 [ 204 P. 583 ]; Civ. Code, § 158), plaintiff submits that at the time the agreement was executed “defendant owed to the plaintiff a high degree of fiduciary duty,” which he violated (A.O.B., p. 13). Her position is without merit because when the agreement was entered into the parties were not yet married, and neither the law of Mexico nor the established rule in California presumes the existence of a confidential relationship between prospective parties to a marriage. Plaintiff has submitted no authority under the Mexican law (nor has our research thereof revealed any) to the effect that the confidential relationship which is presumed to exist between husband and wife also exists between the parties before their marriage. And we well understand why,- such a rule in a jurisdiction wherein the parties are obliged to enter into prenuptial agreements before marriage would subject the contracts to constant attack and tend to destroy the intent and purpose of the law requiring them. Although it is still the custom in Mexico to submit to a religious ceremony, the fact that the parties were “married” by a priest immediately before they executed the agreement does not change their status. Under article 130, Constitution of Mexico, all validity of the religious marriage ceremony was abolished, and the relationship of husband and wife can

Referring to California law, appellant dismisses the holding of Handley v. Handley, 113 Cal.App.2d 280 [ 248 P.2d 59 ]— that no confidential relationship is presumed to exist between prospective parties to a marriage—as obiter dictum, and, in any event, inapplicable to the instant facts. But that rule, essential to the disposition of the Handley case, supra, does establish the law in this state; and although the separate and community claims are therein reversed the distinction does not prevent its application here. In Handley v. Handley, 113 Cal.App.2d 280 [ 248 P.2d 59 ], plaintiff wife held certain real property in her own name and in a divorce action asserted it to be her separate property; defendant husband claimed it as community property under an executed oral antenuptial agreement that the parties would treat all real property acquired subsequent to their marriage as community property. On appeal plaintiff conceded that the evidence was sufficient to warrant an implied finding that an oral antenuptial agreement existed, but denied the same had been executed. The court held that the oral agreement had been executed by the parties; then plaintiff contended that, even so, the agreement was fraudulent and void, based on section 158, Civil Code, which declares a confidential relationship is presumed to exist between husband and wife, and argued that the burden was on her husband to show that the agreement was fair, just and fully understood by her. The court rejected her position stating at page 285: “The simple answer to this argument is that section 158 has no application to the making of this oral agreement because the parties were not married when it was made, hence the confidential relationship did not, as a matter of law, exist and the parties could deal with each other at arm’s length. ’ ’

Nor do we find in the record before us that defendant was in fact guilty of any fraud, deceit or overreaching; or any implication thereof due to the difference in the ages and experience of the parties. It is unfair to compare defendant’s then age and business experience with that of plaintiff; if a comparison is material, it should be made with that of her mother, plaintiff’s only living parent and guardian, who represented her, a minor, in all of the proceedings (Civil

Nor is plaintiff’s assertion that neither she nor her mother understood the extent of defendant’s property, borne out by the record. Defendant testified that before he was married he not only told plaintiff that he owned the property listed in the agreement and had several conversations with her about it, but discussed his worth with plaintiff’s mother on 1 ‘more occasions. ’ ’ Further, the agreement sets forth in detail

It does not appear to have been a “whirlwind courtship,” but one providing ample opportunity for discussion and inquiry concerning defendant’s worth; and during which courtship plaintiff, with her aunt and uncle, visited defendant in Los Angeles and defendant made several visits to Mexico to see plaintiff. There being no evidence that plaintiff’s mother was not then on friendly terms with defendant—the evidence shows that the parties and their families were well known to each other through intermarriage—it is reasonable to infer that she discussed with defendant, at some length, her daughter’s welfare and future. It is difficult to believe that she, plaintiff’s only living parent and guardian, who had brought up plaintiff “in the old Spanish—the cloistered—sense” (A.R.B., p. 4) would permit her only child to marry and leave her native Mexico, without concerning herself with defendant’s financial position and how he intended to care for her. It is significant also that on the last page of the agreement bearing the signatures of plaintiff, defendant and plaintiff’s mother, are listed separately, and described, each of defendant’s properties on the left and center of the page and the corresponding value of each on the right—all in Spanish—■ immediately preceding the signatures of the parties. That plaintiff’s expert on Mexican law (Mr. Jurado) believed it to be significant that she did not have legal advice prior to sign

Plaintiff asserts that, in any event, the agreement was not duly executed according to Mexican law in that—it was not read aloud to the parties, its legal effect was not explained to them, it involved realty in value in excess of 5,000 pesos and it was not presented to the head of the Office of the Civil Registry, and there is nothing to show that plaintiff signed it as a minor or was legally represented by her mother. Plaintiff presents an extensive factual argument pointing up certain evidence favorable to her, but it fails to sustain her burden of demonstrating wherein the proof in the record before us is insufficient to support the findings. (Carvalho v. McCoy, 128 Cal.App.2d 702 [ 276 P.2d 21 ].)

Referring to her contention that the clerk did not, in accord with the obligation imposed by article 98, section V, Civil Code, explain “to the interested parties all they needed to know, so that the agreement may be formulated,” we refer first to defendant’s testimony. He said that it was on January 16, in the Office of the Civil Registry, he first discovered there were two regimes under which they could be married—“ [W]e asked for explanation, and they explain”;

Plaintiff was positive in her denial that neither she nor her mother was even present in the Office of the Civil Registry or in Mexico City on January 16, but the great weight of the evidence is to the contrary. Aside from the testimony of defendant, and that of the clerk that plaintiff and her mother were present, the physical evidence contradicts plaintiff’s denial. The face of each document discloses that both the marriage application (Exhibit A) and the form containing the statistical data (Exhibit E) were completed on January 16 in the Office of the Civil Registry in Mexico City, and then and there signed by defendant, plaintiff and plaintiff’s mother. Miss Bernaldez, the clerk, not only also signed these documents, but testified that the initials “S.C.B.,” appearing above defendant’s name on the statistical date form (Exhibit E), were written by her in the office on January 16 when the parties personally made their election known to her, as indicating their intention to be married under the separate properties regime. Further, the official summary of the proceedings on January 16 and 23 in the Office of the Civil Registry (Exhibit D) bears the names and signatures of both plaintiff and her mother, showing their presence on January 16. Plaintiff’s antenuptial medical examination also discloses the presence of plaintiff in Mexico City on January 16. In

Nor is there merit to plaintiff’s claim that the agreement was not read aloud to the parties at the time of the marriage. Defendant testified that on January 23, the clerk handed him the antenuptial agreement which he read and then cheeked for mistakes; that plaintiff “did exactly the same thing”—read it and saw the list of property, all in the presence of plaintiff’s mother who also saw, signed and approved the agreement; that thereafter the agreement (Exhibit F) including the list of defendant’s properties and their value, was read aloud by the clerk during the marriage vows. The clerk who was present during the ceremony testified she read the document aloud; another witness, Mrs. Rodriquez, testified she remembered it because it mentioned a farm in Peru and she “surely” remembered it was read aloud before the parties were married; the law and custom of Mexico require that the agreement be read aloud (Civil Code, art. 102, p. 28); and the marriage certificate (Acta de Matrimono) on file in the Office of the Civil Registry (Exhibit G) recites that the antenuptial agreement was read aloud during the ceremony. No evidence was permitted to impeach or vary the recitals of the facts contained in the marriage documents (Exhibits A through G) as they appear in the Civil Registry, although proof that the agreement was read aloud was received on the issue of whether plaintiff and her mother knowingly entered into the same.

Plaintiff’s argument that the agreement is invalid because it involved real property in excess of 5,000 Mexican pesos and was not presented to the head of the Office of the Civil Registry, and that there is nothing in the records to show that plaintiff was legally represented by her mother, who had the legal capacity to serve, is predicated entirely on the opinion of plaintiff’s expert, Mr. Jurado. Mr. William Stern, defendant’s expert, testified to the contrary, supported by citation of authorities. It is significant that neither appellant nor Mr. Jurado has cited in support of the latter’s opinion any pertinent section of the Civil Code of Mexico or any other legal authority under Mexican law. Thus, it was for the lower court to resolve the conflict in the testimony of the

By deposition Mr. Jurado testified that any such agreement involving real property of a value in excess of 5,000 Mexican pesos must be in the form of a public document—notarized; and that the law requires a recital in the agreement itself, or a separate document, showing the legal capacity of the person representing the minor. However, Dr. Stern testified that under Mexican law it was not necessary that the document be presented in a public writing (notarized) unless it effectuated a transfer of property between husband and wife, (here it did not) even though the value of the real property is in excess of 5,000 pesos. This opinion was supported by case law submitted by Dr. Stern in Exhibit S (Memorandum to Counsel). It was also Dr. Stern’s opinion that there is no requirement in Mexican law that a document reflecting the legal capacity of a minor’s guardian be made a part of the Civil Registry, or that a recital to that effect appear in the contract. Nevertheless, the documents show that plaintiff’s mother signed them as a parent of plaintiff (“Padres de la Pretensa” [Exhibit C] and “Padres de la Contryente” [Exhibit F]); and the evidence discloses the fact that plaintiff’s mother was then 50 years old, of normal mentality and well enough to be present at all times.

Aside from the bare assertion (In re Steiner, 134 Cal.App. 2d 391 [ 285 P.2d 972 ]; Gantner v. Gantner, 39 Cal.2d 272 [ 246 P.2d 923 ]) that “the court should have made provision for payment to the plaintiff if she should survive the defendant, or in the absence of such a judgment should have increased the monthly allowance” (A.O.B., p. 27), plaintiff offers no argument (Sloan v. Stearns, 137 Cal.App.2d 289 [ 290 P.2d 382 ] ; Clay v. Lagiss, 143 Cal.App.2d 441 [ 299 P.2d 1025 ]; Guillory v. Godfrey, 134 Cal.App.2d 628 [ 286 P.2d 474 ]), makes no reference to the record, (Eistrat v. J. C. Wattenbarger & Sons, 181 Cal.App.2d 57 [ 5 Cal.Rptr. 77 ]; Davis v. Lucas, 180 Cal.App.2d 407 [ 4 Cal.Rptr. 479 ] ; Abrams v. Bendat, 165 Cal.App.2d 89 [ 331 P.2d 657 ]) points up no error (County National Bank etc. Co. v. Sheppard, 136 Cal.App.2d 205 [ 288 P.2d 880 ]) or abuse of discretion (McClellan v. McClellan, 159 Cal.App.2d 225 [ 323 P.2d 811 ]) on the part of the lower court, refers to no evidence, and cites

Nevertheless, a review of the record discloses no abuse of the trial court’s discretion. (McClellan v. McClellan, 159 Cal.App.2d 225 [ 323 P.2d 811 ]; DeSanto v. DeSanto, 162 Cal.App.2d 126 [ 328 P.2d 463 ].) The decree awarded plaintiff $1,500 per month alimony until further order of the court, $3,000 for back taxes, $1,300 for a furniture payment, extraordinary doctor and dental bills, $300 per month for support of a minor son, such sums as defendant deems “reasonable and necessary” for support of an emancipated minor daughter, $4,000 additional attorneys fee and $1,463 in costs, the balance of the trust deeds in her possession having an original face value of $135,000, a $150,000 life insurance policy on defendant, and certain articles of furniture, jewelry, et cetera.

Plaintiff is 39 years old. The children are not under her care—the daughter married and divorced is now 19 years old; the son now 21, away at school, lives with his father when in the city. Plaintiff has separate funds consisting of notes secured by a deed of trust, stocks and bonds of a reasonable market value of at least $30,000 and a minimum face value of $60,000, the income from which is approximately $4,000 per year. Plaintiff has herein failed to demonstrate that she is not ablebodied, not in good health and not capable of working, and more important, that the funds she has been awarded are not adequate for her present needs. Further, using her own figures relative to the life expectancy of defendant, she will receive $207,000 in alimony at the rate cf $1,500 per month. Defendant is 65 years of age and has never been employed although he has managed his own properties. There

Nor do we find an abuse of discretion in the award of attorney’s fees. Defendant has been required to pay $2,500 to plaintiff’s first counsel; $10,000, prior to judgment, to present counsel, and $4,000 additional to him upon entry of judgment, together with $1,463 costs. In all, defendant has paid out for plaintiff’s present counsel $14,000; in addition, the latter received from plaintiff a retainer of $5,000, making his total fee, $19,000. He has also received an allowance for this appeal. Again plaintiff’s main complaint seems to be that defendant is a millionaire and “possesses the financial capacity to respond” (A.O.B., p. 31) to a larger award. Although predicating her argument that the sum of $19,000 is inadequate and unfair upon “the time spent, the result accomplished, the nature and importance of the case, the difficulty of the questions presented, the strength of the opposition, the standing, skill and experience of the lawyer, and the financial ability of the party called upon to pay” (A.O.B., p. 28), appellant has failed to show either that all of these matters were before the trial court for its consideration, or that the court below abused its discretion on the basis of those which were presented to it.

Plaintiff points up for “the time spent,” 526% hours which her counsel represented to the court below he had worked on the case; if this time was accepted by the trial court, counsel was paid at the rate of approximately $36 per hour. To indicate “the result accomplished,” she refers to the “success” of her alimony and other awards; but the fact is that she was unsuccessful in establishing the existence of community property and does not feel that the awards of alimony and other incidental allowances are “fair, proper or adequate” (A.O.B., p. 26), hence this appeal. In connection with “the nature and importance of the case” and the difficulty of the questions presented, plaintiff’s counsel represented to the trial court that there were complexities and unusual proceedings under the Mexican law. The issues were primarily of a factual nature. Perhaps counsel’s difficulty arose out of the need for a translation of the law of Mexico,

Inasmuch as other points relative to the lower court’s error in excluding evidence to impeach or vary the recitals contained in the official records of the marriage documents as they appeared on file in the office of the Civil Registry of the government of Mexico (A.R.B., p. 2), and to the failure of the lower court to apply California law “to control the marital property rights and relations” of the parties (A.R.B., p. 5) were not raised by appellant until her reply brief; and issues directed to appellant’s complaint that she was confronted with a “bifurcated” trial in which the issue- of the validity of the antenuptial agreement was first heard, and to her assertion that the basis of her failure to receive a higher allowance for attorney’s fees to be the “offense” the trial judge took of her counsel personally, were not raised until oral argument, we refrain from passing further comment concerning them. (People ex rel. Department of Public Works v. McCullough, 100 Cal.App.2d 101 [ 223 P.2d 37 ]; Utz v. Aureguy, 109 Cal.App.2d 803 [ 241 P.2d 639 ]; Richard v.

For the foregoing reasons the judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

Appellant’s petition .for a hearing by the Supreme Court was denied October 11, 1961.