*1 REPORTS OF CASES IN
DETERMINED THE SUPREME COURT
OF THE STATE OF CALIFORNIA. F. Junе 30, No. 4882. In Bank.
[S. ANNA AGNES PEREIRA, Respondent, v. FRANK PE
REIRA, Appellant. Divorce—Agreement Property for Division in of of Event Future Policy.— Delinquency of Husband—Contract Public agreement An a between wife, pending husband and an executed action for by whereby divorce instituted her, pending she waived the cause of and agreed it, agreed action he to dismiss "and that in the event he should so give thereafter conduct himself as to her a new cause of divorce, action for and she same in a should establish the subsequent action, pay' he would her specified money, sum accept agreed she in full of her satisfaction rights, against public policy void. Id.—Community Property—Profits Separate Estate in Invested Capital.—Where at the time of his mar- Business—Interest on riage a separate husband has a amount of his in- definite capital vested as business, his which he afterwards continues to carry great profit, determining profit on at portion of what such community property, must presumed, in the absence evidence contrary, profits justly cap- that some were due рroperty, ital separate invested would constitute his and that equivalent the amount least thereof would to at the usual interest long on a investment well secured. Id.—Appeal by Judgment—Increase Prop- Husband from Divorce erty to Wife.—Upon appeal by the husband from a Award community property which determined that the specified value and awarded the wife three-fifths thereof, by increasing change the court cannot community property given share her. Separate Appeal—Deductiоn Judgment Id.—Modification Property—Legal Capital of Business.—Where Interest CLVI Cal.—1 v. Pekeira any por- community property including erred trial court prop- husband conducted profits the business tion of the therein, and property invested erly separate be credited to to a capital entitled show that such was no evidence to there may, appeal on an legal than this court greater interest, return *2 judg- therefor, the upon application direct husband, the wife’s the husband, of his modified, as to allow the ment to be so amount per cent on the separate estate, at rate of seven interest the capital. of such Eights may
Id.—Interlocutory Judgment—Property Be Deter- mined—Custody op to of 1903 the amendment Children.—Under power, Code, has the the trial court sections 131 and 132 of the Civil divorce, to judgment of interlocutory rendering at of the the time action with the try the to and determine the issues between may, While this custody of respect property and children. the power, has under generally done, and should the court previous laws, amendment, always power had the under it has postpone of reasonable the trial and such issues decision inter- whether time after the rendition of the locutory or final. Id.—Postponement op Interlocutory Judgment—Proper op Finality court,. in trial practice Practice.—The is be commended one trial and divorce, determining an action all the issues in rendering interlocutory judgment declaring rights of the an
parties upon issues, providing all and the same respects of divоrce become final time when the decree final, temporary alimony. allowing became mean time interlocutory Superior APPEAL from an William County Court of Alameda in an action of divorce. Waste, Judge. H. opinion
The facts are stated court. Dannenbaum, Meyer Jacobs, Appellant. Arthur J. and for for Bowie, Snook & and Church, Wheeler, Charles J. F. S. Respondent.
SHAW, J. The plaintiff interlocutory judg- obtained ground cruelty. judg- ment divorce on of extreme This ment also three declared should have fifths community final, that the divorce became property when custody her minor child she should thereafter have her marriage, provided temporary alimony it and custody during elapse that would the child the time between the interlocutory judgment judgment. the final appealed interlocutory judgment The defendant from this sixty within days appeal after the This rendition thereof! presented judgment-roll excep- upon upon a bill containing tions the evidence. justify
It conceded that the evidence was sufficient custody plaintiff. divorce and the award child to finding The claim of appellant is that the erred in the excluding as to amount and in relating evidence thereto. point
1. The ruling first to be noticed is the of the court declaring void a parties relating contract between the their thereof, refusing division to enforce opinion or consider init that connection. We are of the properly the court refused to consider this contract on the ground plainly public policy. that was begun January 21, action was A action of previous 1905. *3 ground large cruelty consisting divorce extreme in part assigned the same acts in complaint was against by plaintiff commenced Septem- defendant begun ber 1904. After action that was became reconciled, resumed marital relations, and on November 4,1904, dismissed the action. On November pursuance begun of negotiations in before the dismissal but reconciliation, after question contract in was executed. previous It was dated November it recites 1st and that the pending. plaintiff expressly action then Therein was alleged in comрlaint said waived the cause divorce agreed The provided to dismiss action. contract further party in, that none of relatives either should settle to, or visit the home without the par- invited consent of both ties; if the husband should thereafter so himself conduct give wife a new cause as to of action for and she subsequent same in a should establish the action him maintenance, thereupon or the husband divorce pay dollars, wife which ten thousand should be a full discharge satisfaction, settlement, and of all claims of the alimony, costs, “for counsel fees, support, in such action wife homestead, herself, right, property homestead maintenance every kind and character.” It also declared and benefit subsequent of the institution of such “in the event action all claims and in to by demands her or on her or otherwise, moneys, property property, or or rights, now defendant, or other acquired by” hereafter owned or settled, than hereby said ten forever thousand dollars “are liquidated, relinquished, abandonеd, released, waived and claim, no monetary demand, or or relief or benefit shall ever claimed, sought in, by by asserted or reason instituted, subsequent action, said except should it be aforesaid.” extent may
The provides Civil Code husband and wife any engagement respecting property enter into with the other might married, subject they if not to the law into enter 158); (see. they as fiduciary general in and that relations may may agree, writing, separation .immediate provision make them and of their support for the оf either of they during separation, children cannot such but legal relations, except contract, alter their otherwise agree- no property. (Sec. 159.) was in this contract There separation, and, hence, agreement pay ment for ten upheld provision sup- for the thousand dollars cannot be as a separation, port provided of the wife on a section 159. dollars, pay ten thousand real of the contract effect provide against concerned, would be to so fаr as the husband wrong subsequently inflicted to be contemplated liability for a liability wife, liquidate upon him' wrong. The evidence and advance commission prop- possessed then was the defendant findings show that dollars, engaged erty seventy-seven thousand worth about receiving business, an income of very lucrative every year which he had rea- thousand dollars about eleven *4 By contract, valid, continue. this if he son to would believe grievous upon inflict his wife most free to marital was left divorce, her to a comрel obtain secure as would wrongs, such ten thousand that dollars of his contract protection in the pecuniary against him of a nature her claims satisfy all would should, If he after property. to the in relation or to anew the impulse commit by evil moved execution, its gave her cause for first which against wife offenses legal effect, the existence of a having the same acts or other encourage him not to could but this sort contract valid injury. inflict the inclinations, As it his baser to yield - 5 v. Pereira. was obviously adapted pre- produce result, it is to this sumed him this was made that which one inducements desire agree- its execution. The law does not countenance “Any ments. having for its parties contract between object facilitating marriage contract, dissolution of the or that result, en (Lover is void v. ... as contra bonos mores.” Loveren, Phillip quoting Cal. v. 802], Pac. [39 Thorp, 10 494; ; Or. Beard, Beard Pac. 65 Cal. v. 229] [4 Newman Freitas, Seeley’s 907].) In Pac. [61 Appeal, 56 says: Conn. 206, Atl. court “Inas- 291], the much vitally state upon family rests and is inter- ested in the permanency marriage estab- relation once lished, it, promotion for public welfare, private and of morals as well, every marriage makes a party itself contract entered jurisdiction, into within its sense, in this that it will permit by party the dissolution thereto. thereof the other Its in the form passed consent of a decree of court after its hearing in process due law, prerequisite is a divorce. .. . Courts will not price enforce contract by party relation, pro- consent one to the curеment of by And, to a divorce the other.” reference agreement similar bar, in the in the case at the court just case “Presumably party cited said: each saw agreement pos- an individual advantage; him, in that he sibly paid her less thereby than the
upon hearing compel; would that he refrained her, in answering allegations by therefor from petition her proof, possibly and thus permitted a which he could divorce prevented.” agreed to,
Before the made, contract was terms its up had becomе made their former differences and had by agreement reconciled. shows terms not an It its that it rights accruing by to settle a marital reason of already perpetrated offense as a cause complete applied There is claim, divorce. therefore no in the force case, or valid as a settle- competent evidence, that it is rights, ment that such such' even if were conceded agreement might permitted under some circumstances be procured contract was stаnd. court also found through fraud. Our husband undue influence policy upon point public conclusions that it was *5 Pebeira v. unnecessary sufficiency makes it the evidence to consider the to sustain findings. these community property
2. The found that parties $57,664.77. was claimed value It is is not sustained the evidence. being
There practically subject, there no conflict on findings no point witness to that except the defendant. state on which property that this real estate consisted business, of the value carried on which was defendant^ mak- forty-five hand, money dollars, thousand and certain ing up plaintiff the remainder. The shows evidence that time and defendant 1900. At April intermarried on carrying been, was, defendant and he ever since has saloon a net income cigar business, producing then cigar and about He annually. five thousand dollars owned thousand saloon fifteen fixtures, stock and worth in about dol- six dollars, had, besides, five hundred some thousand home marriage bought lars in cash. he Soon after the lived, twenty-seven wherein paying afterwаrds expended thereon therefor, he hundred dollars afterwards twenty-three home is it. This improving hundred dollars no given adjudged to be his separate property bought marriage A'year interest in it. and a half after his he price carrying he on business in'which was thou- forty paid in cash therefor five thousand dollars. He paid he income, his afterwards, sand dollars out of on hand at the cash price balance of the and accumulated amounting twelve thou- over trial, addition, time of about income at time of trial sаnd dollars. His net his year. From the time of eleven dollars a thousand seventy-five wife dollars his to the time trial allowed he There own clothes. made her run the and she month to house of his the total amount discrepancy between unexplained is an gains. He and his total expenses, the household income less disclose, if his willing to he more than was must received have much as amounted expenses over household net income allowing any- received, he has money which he admits expenses. thing personаl he had other may believed that The court justifi- concealing. was some There he had succeeded caught in the act at- he inference, for this cation Pereira, of a tempting $7,761 to conceal hand means cash on *6 New four pocket York draft for the which he had carried in his preceding months de- however, It appears, trial. cision upon theory of the court of his was made that all gains marriage, received after from to be sources, were whatever community classed property, as was and that no allowance made separate in favor of his estate on of interest or account profit on the fifteen thousand five invested hundred dollars marriage.' the business at the capital time This undoubtedly separate his estate. in the The fund remained by business after carrying and was him in used separate on. The property been should have with credited profit losing some as capital. amount on this It was not a very a profitable very business but one. It is true that it is clearly principal part large shown income was personal character, due to energy, ability, capacity earnings course, the husband. This share of the was, of community property. capital But without he have could not carried on the In the business. absence of circumstances show- ing result, presumed different it is to that some profits justly were to the capital due There is invested. nothing- to show that all it was due to efforts defendant’s probable capital alone. The contribution the income been determined -frоm all the circumstances ease, profitable and as business was it would amount on long usual interest least to the investment well secured. (Boggess Richards, 576, v. 39 Va. Rep. 938, W. Am. St. [45 599]; Trapnell Conkling, 20 S. E. v. 37 W. 252, Va. Am. [38 Rep. 30, 570]; Whitehead, Penn St. S. E. v. 17 Gratt. 478]; Taylor, Dec. Glidden v. 16 Ohio Am. St.
[94 [91 98].) refusing We think erred in Am. the court Dec. separate proportion property increase the decrease the property community gain to the extent of the reasonable earnings separate properly from estate allowable capital investеd. account of the disposition community property
It is true court, particulars, including in all com- superior matters subject discretion, revision in this mitted to its court Eslinger 148; (Civ. Code, Eslinger, v. appeal. sec. 47 Cal. Strozynski Brown, 580; Strozynski, 60 Cal. v. 64; Brown 1130].) In Pac. each these cases the 97 Cal. [31 v. Pereira. community supreme court increased the wife’s share of the given by court, half, from one the trial to three cannot, upon we appealed fourths. But the wife has not change judgment by increasing appeal, the husband’s community given share of to the wife. The con- error, respect property, which we can classing appeal husband, upon sider error gains community property profits” separate property from derived the “issues and (Civ. Code, 163), of which cannot deter- the amount we sec. necessary retrial It will be to remand the ease mine. new free, upon below will be issue. larger community property trial, apportion a share of the to divide it in such plaintiff, between *7 just, it deem under all the circumstances. shares as shall point fair in of fact. division seems appellant that, under the amendment 3. The further claims Code, 131 132 of the Civil the court of 1903 to sections and rendering the of the interlocu- power, at or before time has no any finding, or divorce, inquiry, to make tory judgment of rights parties, the or respect with the of decree divorce, subject 'the respect any other connected with with 131 complainant the to a divorce. Section except right the of “In actions divorce the court point as follows: on this is cаses and conclusions of law as other file its decision must granted, final that no divorce shall be if it determines thereupon accordingly. If be entered deter- judgment must it ought granted interlocutory to be that the divorce mines declaring entered, party in whose be judgment must 132 to a divorce.” Section decides entitled court favor the expired entry of year “one has after provides when interlocutory judgment, the court on motion of either motion, may judgment enter final upon its own party, or judgment final shall restore divorce, and such granting the single persons, permit of either them to status entry thereof; and such other further marry after the complete disposition necessary of may relief as party entry after the of either death . The . . action. impair power not of the court does interlocutory judgment provided; hereinbefore but such judgment to enter final marriage contracted any either validate entry shall v.' party before entry judgment, of such final nor constitute any any defense of prosecution criminal еither.” made As these provisions were made after of the the other sections code had been in many years, expected force for to be provisions the new respects would not in be consistent language with subject. other sections on same In sec- tion 146 the code speaks disposition of a property “in case marriage.” In the dissolution section rendering 147 the code declares that “the court decree disposition must make such order of the community property and of in this the homestead as chapter provided”; section 90 it declares that only by judgment competent dissolved jurisdiction declaring provisions a divorce. Prom these it is argued by appellant power make a that the court’s disposition rights of the property exists time when the divorce becomes final and that attempted act accomplished that, way to be in the before interlocutory declaring a trial or rights rights custody children, is coram non judioe and void.
We do provision requires not think that the code such a history legislation narrow on the construction. When subject existing adoption conditions at the time considered, purpose, mean- amendment of are ing, and effect of amendment difficult discover. are not necessary provide While the that a divorce law deems it granted may make the mar- when conditions are such as to *8 riage policy intolerable, relation it that the is nevertheless true marriages. It of the does favor the of law not dissolution sought, generally many has divorces werе been believed that fancy good roving found faith, not in because a had but attractive, affinity was another more and- that a dissolution marital solely purpose forming a new often desired for the of design providing of conditions under connection. With the char- passions of this which it would understood that ardent be marriage a to cool before new perforce acter must have time actually formed, legislature, the in relation could be marriage no should be providing a law in effect enacted year by any person, until at least one divorced entered into (Stats. was elapsed decree divorce had after the rendered. Cal. [156 p. 34.) customary provisions It had become to the avoid expedient going adjacent of this act to an for state entering purpose a new This into marital relation. compelled marriages was in court to hold that contracted state, although they another state were valid in this were year entered into within than a a less after divorce had been Wood, granted (Estate in parties. to one this"state" of the 900].) purpose Pac. The of the amendment carry object attempted of 1903 was to into effect the to expedient of 1897. To attained the statute do"this the was delaying adopted the final in cases for the divorce period judicially it year of one after was ascertained that granted. By making right to divorce should thus period year, impos- ineffective for one it became divorce parties anywhere contract a valid new sible to year at after the trial of the action of until least divorce Except necessary far as to place. so accom- had taken change plish object, it not to intent of statute procedure practice and in actions any respect in power has doubt that the court the same divorce. We do not always try had to determine the issues it has now that respect prop- with parties in a divorce action between the generally custody children, may, and that this erty and respect as the issues with should, be at the same time done Unquestion- are tried and determined. for divorce the cause power law, under ably the would laws, previous postpone power under always had has rights custody property decision trial and reasonable time after rendition children interlocutory divorce, whether or final. judgment of changed power respect. It its not has amendment try entire action at the for divorce actions proper give are respecting tried divorce issues as the time same rights declaring interlocutory children. respect with this, the court below in case the action commend We concerning prop- interlocutory decree its declaring, at specified become final rights therein erty, became final. We are of divorce decree time the adjudication whether determine here to upon called final have been would not would rights *9 Pereira v. expiration of six of the entry from of the months the time interlocutory decree, taken, the appeal if no been had parties had, expiration year before and after of one expiration of an months, by consent, procured six mutual order from the annulling interlocutory decree divorce; or whether such would had annullment setting relating rights effect of aside the decree and children. questions These in case are not involved and it will in disposition be well to leave them for future some they directly case where In presented. are case the court all ren- determined trial and issues one dered interlocutory judgment declaring rights parties upon issues, all the providing the same respects only decree become final at the time when the of divorce became final, allowing temporary in the"mean time alimony. objection We see no practice to this commend it as power within the proper of the court but as a method power. of the exercise of that
The as to the amount and value disposition and as to the thereof between the and the reversed fоr a cause remanded new trial and judgment upon particulars that issue alone. In all other judgment is affirmed.
Angellotti, J., Sloss, Mel- J., Henshaw, J., Lorigan, J., and vin, J., concurred. day July,
On the thirtieth court in Bank filed following opinion judgment:— and modification of the case, THE COURT. filing opinion in Since the of that, remanding has case asked instead of property, new trial of the issues regard thereto, modified has filed a written consent estate, allowed, separate defendant be of his hand, per out of the cent cash interest at the ratе seven $15,500 capital his business. found to be invested objection directing This removes the modification judgment. show no evidence to introduced defendant greater than return capital entitled to a invested was legal evidence, the burden interest, and in of such the absence v. Pereira. *10 proof being he could upon him, be utmost that would opportunity
claim. The wife would have been entitled to prove, could, proportion if she that it earned a smaller respondent, profits legal being interest, and, than she necessary a new it was for reason to order considered trial for Her avoids consent aforesaid purpose. modifica- necessity in such condition that a and leaves case justice litigation judgment will with tion of the end the Co., 122 parties. (Fox Mfg. both Hale & Norcross S. 221, 731].) Pac. April 19, per $15,500 from
Interest at seven cent on the marriage, to November the time the date of the $12,- from trial, Deducting amounts to $6012.70. trial, 139.03, be cash on hand at time of found to belonging to the com- $6126.33, part as the cash leaves fifths of this is munity. рlaintiff’s $3675.86 three is $2450.47. the defendant’s two fifths by changing the that the be modified It is ordered each in the shares of cash on respective statements of the relating part plaintiff’s share therein, so hand read follows:— shall seventy- three thousand six hundred and
"2nd. The sum of cash, being ($3675.86), in three fifths 86-100 dollars five supreme in cash found $6126.33 the sum of plaintiff defendant; to be separate property in defendant’s interest that no to plaintiff.” awarded relating to the defendant’s share shall so
And as follows:— read fifty four thousand hundred and of two The sum
“2nd. being cash, two fifths ($2450.47), 47-100 dollars community property aforesaid.” found sum affirmed, stand modified soas And that all costs. recover