Avery v. Avery

• Decision Date: 13 August 1970
• Citation: 89 Cal.Rptr. 195,10 Cal.App.3d 525
• Parties: Betty Mae AVERY, Plaintiff and Appellant, v. James A. AVERY, Defendant and Respondent. Civ. 35630.
• Court: California Court of Appeals Court of Appeals

Page 195

89 Cal.Rptr. 195

10 Cal.App.3d 525

Betty Mae AVERY, Plaintiff and Appellant, v. James A. AVERY, Defendant and Respondent.

Civ. 35630.

Court of Appeal, Second District, Division 1, California.

Aug. 13, 1970.

Del Wells, Van Nuys, for appellant.

Walzer, Weinstock, Manion & King, Inc. and Stuart L. Olster, Beverly Hills, for respondent.

LILLIE, Associate Justice.

The parties were divorced in the State of Missouri. The decree entered April 20, 1966, by the Missouri court provided: '* * * It is further ordered and adjudged by the court that plaintiff (defendant herein) pay to defendant (plaintiff herein) as alimony the sum of $15,000.00 as alimony in gross, payable in the sum of $150.00 per month * * * until paid in full and in default of anyone (sic) payment execution issue therefor * * *.' After making several payments defendant defaulted. Thus, on December 22, 1967, in the Los Angeles Superior Court plaintiff sued to establish the Missouri decree as a judgment of the California court, obtain judgment on arrearage and recover reasonable attorney's fees. Four days later, on December 26, 1967, plaintiff remarried in Missouri. On January 22, 1968, defendant filed an answer specifically setting up the affirmative defense that plaintiff's remarriage had discharged his liability to continue alimony payments. On October 23, 1968, counsel for the parties entered into a stipulation ¹ whereby plaintiff was to have judgment against defendant. Pursuant thereto judgment was rendered and entered n October 24, 1968, wherein it was ordered that the Missouri judgment be made a judgment of the Superior Court of California and further, '2. That the sum of $12,500.00 as alimony in gross is still due, owing and unpaid under said judgment; 3. The defendant is ordered to pay said alimony in gross at $150.00 per month commencing October 20, 1968 and on the 20th day of each month thereafter until said alimony in gross is satisfied; 4. The plaintiff shall have all rights and privileges of any judgment creditor, including the right to obtain a Writ of Execution to enforce this judgment, that the court finds that there is a present arrearage on said alimony in the amount of $2,000.00.'

Defendant having defaulted in payments under the October 24, 1968 judgment, plaintiff caused writ of execution to issue and levied on defendant's wages. On May 21, 1969, defendant filed notice of motion to recall and quash writ of execution 'on the judgment for alimony under a foreign decree entered on October 24, 1968, and to vacate and modify said decree' on the 'grounds that plaintiff remarried on December 26, 1967, that defendant remarried on December 27, 1966, and that defendant has a seven-week-old baby and also contributes to the support of his stepson, age 17.' After hearing on the motion, the same was granted on June 20, 1969; the court thereafter entered its order recalling and quashing the writ of execution, terminating 'defendant's obligation to make payments to the plaintiff for amounts which would accrue and become due from and after June 20, 1969,' and staying execution on the arrearage permitting the same to be paid at the rate of $50 per month. Plaintiff appears from the order.

The court's findings of fact and conclusions of law reflect its 'modification' of the alimony in gross provided in the October 24, 1968, judgment 'on account of remarriage' of plaintiff. While defendant in his notice recited that his motion would be made on the grounds that plaintiff remarried December 26, 1967, and attached thereto certified copy of her Missouri marriage license, and that he remarried December 27, 1966, and has a family to support, in the absence of a reporter's transcript of the oral proceedings on the motion there is no showing what evidence, if any, was offered by defendant of his obligation to his present family. The only finding relative to any ground of 'modification' (finding No. 4) recites plaintiff's remarriage on December 26, 1967; no mention is made of any other circumstances. It is apparent, therefore, that the remarriage of plaintiff was the court's reason for the 'modification' (conclusions Nos. 3, 9). Moreover, the court in its order 'terminated' defendant's obligation to make payments on the $12,500 alimony in gross provided for in the October 24, 1968, judgment, not as of the date of plaintiff's remarriage but as of June 20, 1969 (date of minute order granting motion). Thus by implication the court found that the alimony in gross had not terminated by operation of law on December 26, 1967, and 'terminated' the same a year and a half later (June 20, 1969) by 'modifying' the judgment 'on account of remarriage' of plaintiff.

The judgment of October 24, 1968, (1) is res judicata on the issue of termination of defendant's liability for payment of alimony in gross upon plaintiff's remarriage and defendant is barred from relitigating the issue, and (2) is not subject to modification on account of plaintiff's remarriage, thus we are compelled to reverse the order from which this appeal is taken.

In his answer to plaintiff's complaint to establish foreign judgment defendant expressly raised the affirmative issue that plaintiff had remarried terminating alimony placing directly in issue the effect of plaintiff's remarriage on his obligation. Thereafter instead of relitigating the issue, and with full knowledge of plaintiff's remarriage, defendant through his counsel entered into a written stipulation that the Missouri decree be adjudged a judgment of the California court, that plaintiff have and recover judgment against him, that 'the sum of $12,500.00 as alimony in gross is due, owing and unpaid' and that he be ordered to pay the same at $150.00 per month until the same is satisfied. Accordingly judgment was entered October 24, 1968. This judgment rendered and entered pursuant to stipulation was final (Reed v. Murphy, 196 Cal. 395, 399, 238 P. 78; Harris v. Spinali Auto Sales, Inc., 202 Cal.App.2d 215, 217--218, 20 Cal.Rptr. 586); and defendant has not sought to avoid the stipulation on the ground that his counsel had no authority to act for him or entered into the same without his knowledge and express consent, or claimed that his consent thereto was the result of fraud, misrepresentation, mistake or inadvertence, or that the judgment was not entered in conformity with the stipulation (defendant's own counsel prepared the stipulation and the judgment entered thereon), or that the complaint was fatally defective. His claim on the motion to vacate and modify the decree was that plaintiff's remarriage terminated his obligation to pay alimony. 'It is settled that old matters which are embraced within the issues of a former suit are settled and determined by the adjudication therein, and that such findings of fact are conclusive and binding upon the parties and their privies in all subsequent proceedings between them involving the same issues. (Citations.) The judgment of a court of competent jurisdiction entered upon a stipulation of the parties has the same effect as if the action had been tried on the merits. (McCreery v. Fuller, 63 Cal. 30, 31; Moore v. Schneider, 196 Cal. 380, 389, 238 P. 81.)' (Guaranty Liquidating Corp. v. Board of Sup'rs., 22 Cal.App.2d 684, 686, 71 P.2d 931, 932; Klinker v. Klinker, 132 Cal.App.2d 687, 695, 283 P.2d 83.) On his motion the issue defendant sought to have adjudicated is identical with that raised by him in the main action; by stipulating therein that judgment be rendered against him, knowing the existence and the importance of the fact of plaintiff's remarriage, he consented to an adjudication adverse to him on that issue. "A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is Res judicata on matters which were raised or could have been raised, on matters litigated or litigible.' (Sutphin v. Speik, 15 Cal.2d 195, 202, 99 P.2d 652, 655, 101 P.2d 497; Price v. Sixth District Agricultural Ass'n., 201 Cal. 502, 511, 258 P. 387.) Since the validity of the order of September 16, 1949, was necessarily involved in Taliaferro (125 Cal.App.2d 419, 270 P.2d 1036), Supra, and was the basis of the relief there granted appellant is barred from his attempt to relitigate that question in this action.' (Taliaferro v. Taliaferro, 180 Cal.App.2d 159, 163, 4 Cal.Rptr. 696, 698.) Had a trial resulted on the issues raised by the pleadings in the main action the court would have been compelled to make a direct determination whether the award of $15,000 designated in the Missouri decree as 'alimony in gross' was in fact 'alimony in gross' or mere alimony, and whether defendant's liability to pay...