the Marriage of Kerry, In re
| Decision Date | 20 July 1984 |
| Citation | 158 Cal.App.3d 456,204 Cal.Rptr. 660 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re the MARRIAGE OF Reuben Ralph aka Ralph and Frances A. KERRY. Reuben Ralph KERRY, also known as Ralph Kerry, Respondent and Cross-Appellant, v. Frances A. KERRY, Appellant and Cross-Respondent. B002283. |
Montgomery & Lightfoot, and Christopher L. Cockrell, Pasadena, for appellant and cross-respondent.
Wehrle & Anderson, and Trent G. Anderson, Jr., Los Angeles, for respondent and cross-appellant.
Appellant Frances Kerry (Frances), former wife of respondent and cross-appellant, Ralph Kerry (Ralph), appeals from that part of an order of April 26, 1982, vacating an order entered pursuant to stipulation between the parties, which imposed a condition that she pay $1,000 in attorney fees. 1
Ralph has cross-appealed from the whole of the April 26 order granting Frances' motion to vacate the stipulated order.
The 25-year marriage of Frances and Ralph Kerry was dissolved in November 1970. 2 The interlocutory judgment provided that Ralph was to pay Frances $1 per year spousal support.
On December 5, 1980, Frances filed an order to show cause for modification of spousal support and attorney fees. She requested $600 per month in support and $800 in attorney fees. Her supporting declaration stated that, at the time of the dissolution, she was employed as a tenured teacher teaching elementary school and special children's classes. However, in April 1976, she became ill and was repeatedly hospitalized for about three years, which forced her retirement, disabled her, and prevented her from becoming reemployed. During this period, Ralph managed Frances' financial affairs, cashing her retirement checks, paying her expenses, and giving her an allowance. He also contributed extra money for her support, as he deemed necessary, and he insisted that Frances see a psychiatrist whom he had selected. In September 1980, Frances refused to give Ralph her retirement check, and he refused to provide any further support. Frances alleged that she was, therefore, unable to support herself on her own income or to pay her attorneys.
An income and expense declaration was attached to her order to show cause, showing Ralph with a net monthly income of $5,750 and Frances with $695, from her retirement check and rents.
On April 22, 1981, Ralph filed a notice of motion for modification of spousal support, requesting that support for Frances be terminated on the grounds that she had willfully left her teaching job in 1976, without justification, and that she was receiving approximately $700 per month from her retirement fund, which was sufficient for her support. Ralph also alleged that Frances was capable of part-time employment and of carrying out her duties as a teacher of retarded children and could earn up to $5,000 per year from such work without losing her retirement.
On April 29, 1981, after partial trial, a mistrial was declared and the matter was returned for assignment.
During these proceedings, Frances also sought an award of attorney fees pendente lite supported by an income and expense declaration, but a ruling on that request was deferred.
On June 4, 1981, the court ordered Frances to be examined by a member of the Family Law Psychiatric Panel, pursuant to stipulation of the parties, at Ralph's expense.
On January 19, 1982, Frances, Ralph, and their respective attorneys signed a "Stipulation re Modification," which was approved and signed by Judge Billy G. Mills and declared to be an order of the court. By the terms of this stipulation, Ralph was to purchase from Frances a house on Avenue 56 in Los Angeles, for a total price of $40,000, with $10,000 down payment and a note for $30,000, bearing 10 percent interest. Frances warranted that there were no prior liens against the property.
The stipulation further provided as follows:
The stipulation also provided that Frances was to receive a 1973 Chevrolet and the proceeds of some secured loans from Ralph; that spousal support was terminated as of the date of the stipulation; that each party "shall be responsible for their respective attorney's fees and costs"; and that "Petitioner [Ralph] shall not be responsible for any of Respondent's [Frances] attorney's fees and costs."
However, on March 3, 1982, Frances filed a motion to vacate the stipulated order and return the case to the calendar for hearing on the merits. The motion was made pursuant to Code of Civil Procedure section 473, 3 and was supported by the declaration of Frances' attorney, stating that at the time the stipulation was signed, he had believed that Frances still owned the house on Avenue 56 which she agreed to sell to Ralph. On January 21, 1982, he had learned from Frances that she no longer owned the house, having conveyed title to someone else in July 1981, before making the stipulation. He implied in his declaration that Frances' psychiatric difficulties had probably prevented her from understanding the stipulation.
A copy of the report of the Family Law Psychiatric Panel was included in the moving papers. That report indicated that Frances suffered from certain forms of Neither party disputes that Frances had previously sold the property for $25,000. There also was no dispute in the moving and opposing papers that Frances was, at the time of these proceedings, a 62-year-old woman who had a history of psychiatric difficulties.
mental illness and that, "Her judgment was poor, as was her impulse control." The report ruled out teaching on full-time employment, and suggested that she might be capable of low-stress, part-time work
At the hearing on the motion, Frances' attorney urged that to enforce the stipulated judgment would require Frances to permanently waive her right to spousal support, without the benefit of the bargained-for sale of the Avenue 56 house to Ralph at a price inflated by $15,000. All that Frances would receive now from carrying out the stipulation would be the proceeds of a small loan from Ralph to fix up the other house in which she was living and a 1973 Chevrolet. Frances' attorney asserted that she was a "very troubled person" who "did not know what she was doing."
The court agreed, and on April 26, 1982, granted Frances' motion to vacate the stipulated judgment, on several conditions, including that she pay Ralph's attorney $1,000 within 10 days of the date of the order. On proof to the trial judge that the conditions had been satisfied within 20 days from the date of the minute order, the stipulated order was to be vacated and the matter set for a hearing on the contested order to show cause calendar as to the spousal support originally requested by Frances.
Counsel for Frances urged in the trial court that Frances would be unable to pay the $1,000, at least within the 10 days allowed. The court announced that Frances would, nevertheless, have to pay the $1,000, because of the expense and inconvenience she had caused. In fact, the time was extended by court order on the ground that Frances needed more time to attempt to get a bank loan, but Frances never paid the $1,000.
Frances contends on appeal that although section 473 allowed the trial court to set aside the stipulated judgment on such terms as were "just," the imposition of the condition that Frances pay Ralph's attorney $1,000 was not "just," in that Frances was simply incapable of performing the condition and was then seeking spousal support and attorney fees for herself.
Ralph contends on his cross-appeal that the trial court abused its discretion in making the April 26 order by acting without good cause in setting aside the stipulation.
The question posed by Frances' appeal is whether the trial court abused its discretion in making its order vacating the stipulated judgment conditional upon Frances paying $1,000 to Ralph's attorney within 10 days.
Frances attempts to draw an analogy between the imposition of the condition on setting aside the stipulated judgment, and the imposition of sanctions for failure to allow discovery, both of which provide that the court may make an order which is "just." She contends that the requirement that the order be "just" has been interpreted in discovery sanctions cases to mean that the sanctions order cannot place the prevailing party in a position in the overall lawsuit which it could not have attained if discovery had been provided and had been wholly favorable to the prevailing party's case. (See Stein v. Hassen (1973) 34 Cal.App.3d 294, 303, 109 Cal.Rptr. 321.)
In determining whether the $1,000 condition was "just" within the meaning of section 473, this court also must be guided in part by the ordinary standard for measuring an abuse of discretion.
Discretion must be exercised in a manner which is not capricious or arbitrary, but, rather, is impartial and guided by fixed legal principles. Discretion also must be exercised in conformity with the spirit of the law and in a manner which will promote and not defeat the ends of substantial justice. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898, 187 Cal.Rptr. 592, 654 P.2d 775.)
The court's order that Frances pay $1,000 in attorney fees was an abuse of discretion under the...
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