7 Cal. App. 2d 294 | Cal. Ct. App. | 1935
These actions, in which the parties are husband and wife, were tried upon the same evidence and were consolidated for the purposes of the appeals.
Before considering the cases separately or the several points involved therein, certain facts which relate to both cases should be stated.
The parties owned two houses and lots in Hollywood, California, the title to which was held under joint tenancy deeds, and one house and lot in Portland, Oregon, the title to which stood in the name of the husband. They had about $8,000 on deposit in a Texas bank in the husband’s name, and an automobile registered in the name of the wife. In addition, they owned the household furnishings of the home in Hollywood, and certain other personal property that was used in shows and carnivals. All this property had been acquired during the marriage by the efforts of the parties.
On August 27, 1931, the wife left the family home, taking her minor son with her, and secured quarters at an hotel. ■ On
After service of the divorce complaint, summons and restraining order upon him, the husband went to the hotel where the wife and son were staying and endeavored to see her. She refused to see him or talk with him. He then called upon her attorney and through him secured a meeting with his wife. When this was done he sought a reconciliation, begged her to drop the divorce action and return home. He offered on his part to stop drinking intoxicating liquors, to desist from further abuse of her and agreed to act in the future as a loving and considerate husband. The wife declined to accept these overtures, insisted that she had endured years of abuse and cruelty, demanded a divorce and half of the community property for herself and custody of the minor child. The husband then offered to convey all of the community property to her and to grant other concessions if she would forgive him and return. The wife continued her refusal, stating that she “wanted a divorce and half of the property—that which the law would give her”. ■ The husband repeated many times his offer to give her all the property, and finally, through the intercession of the proprietress of the hotel, who was a mutual friend, a tentative agreement for reconciliation and settlement of property rights was effected. On September 1, 1931, the parties entered into a written agreement by which the husband agreed to convey the Hollywood and Portland properties to the wife, to pay her half of the money in the Texas bank, to give her a monthly allowance of ’$150, to pay the fees and expenses of attorneys, to discontinue his excessive drinking, and refrain from other objectionable conduct toward his wife. The contract also contained the following provisions: “Sue Cummins agrees to cause the said divorce action to be dismissed and agrees further that until said action is dismissed, the order to show cause heretofore made in said action against Grover C. Cummins, which is set for hearing on September 4th, 1931, shall be continued, and no further action taken by
The parties returned to their home, and for about three weeks enjoyed “a second honeymoon”. Thereafter, trouble arose, and in March, 1932, they again separated. On March 10, 1932, the husband filed this action to set aside the deeds. The wife thereupon filed a new suit for divorce, charging the husband with extreme cruelty and many abuses, some of which were alleged to have happened prior to the date of the reconciliation agreement. In the action to set aside the deeds, judgment was rendered for the husband and the wife appeals therefrom. This appeal will be considered first, -but it should be noted here that the wife was successful in the divorce action, the court finding that her allegations of cruelty were true; that she was therein granted a divorce, the custody of the minor child, and allowance for his support. The court there found the property above mentioned to be community property and awarded it to the wife in lieu of alimony.
In the first action, wherein the wife is the appellant,the court found, among other things, that the' reconciliation agreement of September 1, 1931, “was not entered into by. either of the parties with an understanding of the force and effect of the contract, and of the deeds executed pursuant-thereto, by either of the parties thereto, and the signature- and agreement of the plaintiff to said agreement and deeds-was obtained by fraud and misrepresentation, and that
Both parties admit that property settlements made for the purpose of bringing about a reconciliation between husband and wife are favored by the law; also, that contracts and conveyances between husband and wife are vitiated by fraud and misrepresentation, misunderstanding of the parties, or failure of consideration, the same as contracts and conveyances between strangers. The sole dispute on this appeal is as to the interpretation and application of the evidence.
Is there support in the evidence for the finding that the agreement “was not entered into by either party with an understanding of the force and effect of the contract?”
It will be observed that this finding does not purport to deal with a mistake of fact. Indeed, respondent contends that it is justified because he did not understand that the transaction would affect the community status of the property. He testified that he knew what community property was; that prior to this transaction he held.it as community property, and that it was his belief that the conveyance would vest the record title in his wife without changing the community character of the property conveyed. With this in mind, the question may be stated thus: Was there sufficient evidence to prove a mistake of law such as would warrant the relief granted ?
Under proper circumstances, relief may be granted because of a mistake of law (Civ. Code, sec. 1576). Section 1578 of the same code provides: “Mistake of law constitutes a mistake, within the meaning of this article, only when it arises from:
“1. A misapprehension of the law by all the parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or,
“2. Misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify.”
The record shows that when respondent first called upon appellant at the hotel she .refused a reconciliation, stating that she wanted “a divorce and half of the property—that which the law would give her”. There was a conversation at that time regarding the fact that all the property stood of record in the name of respondent and it was in connection with this subject that respondent claims he offered to convey it to appellant, that she might hold the title. Our attention has not been called to any testimony of the wife directly stating that she understood that the conveyances would vest the title in her as her separate property. There was other testimony strongly tending to support appellant’s contentions on this point, but at most it only created a conflict in the evidence which the trial court resolved against her. The evidence is presented on a bill of exceptions. The
The finding that “the signature and agreement of plaintiff to said agreement and deeds was obtained by fraud and misrepresentation, and that plaintiff and defendant have each failed and refused to comply with the terms and conditions on the part of each to be performed, and that the consideration for the making, executing and delivering of said agreement and conveyances to the property transferred to defendant has wholly failed” is not supported by the evidence. Respondent testified that when he hesitated to sign his wife said: “Go ahead and sign; I will do right by you.” This is not evidence of fraud in procuring the signature. But he contends that the fraud arose from the fact that appellant induced him to sign while she had no intention of performing on her part. Respondent’s own testimony shows that appellant returned to him, and for three weeks thereafter, and until he commenced to abuse her, performed all the duties of a faithful and loving wife. In the divorce action the court found that his cruelty commenced at that time, and because of it, judgment was rendered for the wife. Under such circumstances, her refusal to submit to further abuse and mistreatment cannot be considered as evidence of an intention, at the time of making the agreement, not to perform.
It further appears that there was never a formal dismissal of the first divorce action, but the evidence is uncontradicted that on September 14, 1931, appellant notified her attorneys, in writing, to have it dismissed; that on the following day they appeared in court, moved to have it dismissed, and that the motion was granted. Under these circumstances, the failure to enter a formal dismissal is a mere technicality that should not be charged against appellant.
Neither are we impressed with the argument that there was a failure of consideration. The agreement and
Other points are raised on this appeal but what we have said makes it unnecessary to discuss them. Although the evidence may have been insufficient to support all the findings under attack, the finding that neither party understood the force and effect of the acts in question is sufficient, alone, to support the judgment.
The second appeal is taken by the husband from parts of the decree in the divorce action. No attack is made on that part of the decree granting the wife a divorce or awarding her the custody of the child. All the real property and certain personal property was awarded to the wife and the husband was directed to pay to the wife, for the support of the child, the sum of $75 per month for three years and the sum of $50
Appellant first questions the authority of the court to award all the real property to the wife, contending that part of it was his separate property. In support of this he calls attention to the fact that the Hollywood property was conveyed to the parties as joint tenants and argues that under the ruling in Siberell v. Siberell, 214 Cal. 767 [7 Pac. (2d) 1003], the respective interests of the parties were held by them as separate property.
Preliminarily, it should be said that respondent does not admit that the court awarded the property to her as her separate property, but states that she is simply given the use and income. The interlocutory decree provides that “Sue Cummins is entitled, in lieu of any award for her support and maintenance, to a judgment awarding to her the possession, use and income from the real estate herein described, and entitled to a judgment assigning and awarding to her in and by any final decree of divorce which may be entered herein, as and for her own separate use and estate, the real estate described”, etc. This contemplates that the property shall become the separate property of the wife upon entry of the final decree. This appeal is the proper method of raising the question as to the court’s power to make such a decree.
The case was tried upon issues raised by the wife’s complaint, and by the husband’s cross-complaint. The complaint alleged that the property in question was her separate property. These allegations were denied by the answer. The husband’s cross-complaint alleged that the property was community property and these allegations were denied by the answer to it. The court found that all the allegations of the cross-complaint were true. In this state of the record, appellant cannot complain of the finding simply because there were deeds in evidence showing that the property had been acquired under joint tenancy deeds. He did not seek to amend his cross-complaint, but throughout the trial relied upon the issues as framed by him, and testified that the property was community property; that it had been acquired during marriage by the efforts of the parties. He cannot contend otherwise for the first time on appeal.
Appellant also contends that the award for the support of the child is excessive. Appellant testified that he had been in the carnival business for thirty years and had made good money at it. The evidence showed that respondent’s only income was $50 a month from the rent of one of the houses. At the time of the settlement agreement appellant voluntarily agreed to convey the property to respondent and pay her $150 a month in addition, for the support of herself and the child. At the time of the trial of this action, there was a question whether the Texas bank could pay the money respondent still has on deposit there, but, considering
For the foregoing reasons the judgment in each of said cases should he and the same is hereby affirmed.
Thompson, J., and Pullen, P. J., concurred.