Cope v. Cope

• Decision Date: 19 October 1964
• Citation: 230 Cal.App.2d 218,40 Cal.Rptr. 917
• Court: California Court of Appeals Court of Appeals
• Parties: J. Hallam COPE, Plaintiff, Cross-Defendant and Respondent, v. Elizabeth M. COPE, Defendant, Cross-Complainant and Appellant. Civ. 21794.

Page 917

40 Cal.Rptr. 917

230 Cal.App.2d 218

J. Hallam COPE, Plaintiff, Cross-Defendant and Respondent, v. Elizabeth M. COPE, Defendant, Cross-Complainant and Appellant.

Civ. 21794.

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

Oct. 19, 1964.

Rehearing Denied Oct. 29, 1964.

Hearing Denied Dec. 17, 1964.

Walter T. Winter, San Francisco, for appellant.

Suren Toomajian, Stark & Champlin, by Franklin C. Stark, Richard H. Rahl, Oakland, for respondent.

SULLIVAN, Presiding Justice.

This is an appeal by defendant and cross-complainant from an order denying her motion to set aside an interlocutory judgment of divorce and a dismissal of the cross-complaint filed therein.

On October 20, 1961, plaintiff J. Hallam Cope, a physician, commenced the present action against Elizabeth M. Cope seeking a divorce on the grounds of extreme cruelty. Mrs. Cope answered and filed a cross-complaint for divorce on the same grounds. Eventually the case was set for trial on the regular contested calendar for September 11, 1962.

On that day defendant was not present in court but was represented by her counsel Mr. Golde (not counsel on this appeal). At the beginning of the proceedings Mr. Golde advised the court that a property settlement had been agreed upon between counsel for the respective parties 'and our respective clients,' that Mrs. Cope was then in the hospital but that her attending physician had assured defendant's counsel that she was 'all right,' and that both of defendant's doctors 'felt it would be in her interest to proceed as per agreement.' Counsel for both parties stated to the court that the agreement though prepared was then unsigned but embodied 'all of our agreements.' The court thereupon heard the testimony of plaintiff and plaintiff's corroborating witness. At the conclusion of the testimony both counsel waived findings of fact and conclusions of law. The court thereupon granted plaintiff an interlocutory judgment of divorce on the grounds of extreme cruelty and made orders for the custody and support of children and for the payment by plaintiff of certain community bills. ¹ The court further stated: 'The property settlement agreement orally agreed to by the parties, which is to be reduced to writing, is approved and the property will be distributed to the parties in accordance with its terms. * * * [W]hen you have * * * the property settlement agreement executed by the parties, if it is in accordance with the terms here delineated, the Court will approve it.'

On the same day, September 11, 1962, an interlocutory judgment and decree of divorce was filed in the action to which was attached a property settlement agreement of even date, signed by both parties as well as by their respective counsel. Such judgment was entered on September 13, 1962.

Almost one year later on September 4, 1963, defendant filed in the court below a 'Notice of Motion to Set Aside Interlocutory Judgment and Decree of Divorce (And Property Settlement Agreement Incorporated Therein) and to Set Aside Dismissal of Cross-complaint' on the grounds that such dismissal of the cross-complaint, interlocutory judgment and property settlement agreement incorporated therein 'were obtained by extrinsic fraud and/or extrinsic mistake and/or extrinsic factors.' In support of her motion defendant filed two affidavits. ²

Defendant Elizabeth M. Cope's affidavit states in pertinent part: Prior to September 11, 1962, the date set for trial, defendant had been negotiating for a property settlement through her attorney Mr. Golde but she had not agreed to the proposed terms of any agreement at the time of trial. On September 10, 1962, being extremely nervous and upset, defendant called her attorney and told him that her physical, mental and emotional condition was such that she could not proceed to trial on the following day. For approximately three years she had been under the care of Dr. Boyes, a psychiatrist. Her condition becoming progressively worse through the night of September 10 and 'fearing that she would suffer a complete collapse and nervous breakdown,' affiant went to Samuel Merritt Hospital in Oakland where she was admitted at approximately 3 a. m. ³ Early in the morning of September 11, 1962, she was visited by Dr. Hudson, her physician, who later told her that he had been in touch with the court. At about 11 a. m. on September 11 she was visited by Mr. Golde and Dr. Boyes, her psychiatrist. The former told her that the hearing had been concluded and gave her some papers to sign which she did.

After setting forth certain portions of the transcript of the oral proceedings had before the court on September 11, 1962, to which we have already made reference, the affidavit further states: Mrs. Cope had not agreed to the terms of the property settlement agreement as stated in such transcript and had not authorized her counsel to dismiss her cross-complaint. At the time the agreement was presented to her 'she was still in the hospital and was in no physical, mental or emotional condition to understand the agreement or the terms thereof.' She only recently regained her senses sufficiently to obtain legal help and obtained new counsel (defendant's counsel on this appeal) on July 25, 1963.

The affidavit of Betty Corley, a friend of defendant's, states: Sometime before 3 a. m. on the morning of September 11, 1962, she had received a telephone call from defendant who was 'wildly upset.' Later that morning Mrs. Corley, together with her husband, attended the divorce hearing, after which Mr. Golde asked them to go to the hospital, saying that the property settlement agreement was a 'good deal' and that he wanted them to so convince Mrs. Cope. Mr. and Mrs. Corley went to the hospital and waited in the hall while Mr. Golde and Dr. Boyes entered defendant's room. About ten minutes later both men came out, the attorney telling affiant that defendant had signed the papers and wanted to talk to her. Affiant and her husband then entered the room where they found defendant 'crying' and 'clasping and unclasping her hands,' Mrs. Cope stating: "What has happened? * * * What is going on? * * * I am completely confused." According to Mrs. Corley, 'Mrs. Cope then talked incoherently. She appeared extremely distraught.'

Plaintiff filed four affidavits in opposition to defendant's motion.

The affidavit of Suren Toomajian, plaintiff's counsel, states: During the week preceding the date set for trial, Mr. Toomajian and Mr. Golde negotiated for the purpose of settling the property and personal rights of the parties. On Saturday, September 8, 1962, the parties had reached an agreement which was to be reduced and was in fact reduced to writing by affiant on September 10, 1962, and was delivered to Mr. Golde on the morning of September 11, 1962, prior to the hearing. Mr. Golde at that time advised affiant that defendant was not present and had voluntarily admitted herself to the hospital. The case was then regularly called for hearing, at which affiant appeared for plaintiff and Mr. Golde for defendant.

The affidavit of Dr. Boyes, a licensed psychiatrist, states: Mrs. Cope had been his patient for several years. On September 11 he was present at a conference between Mr. Golde and defendant in defendant's hospital room at which Mr. Golde reviewed with defendant 'paragraph by paragraph' the terms of the property settlement agreement which the attorney had brought with him. Mr. Golde explained to Mrs. Cope the various features of the agreement; she in turn asked questions which the attorney answered; at the end of the conference which lasted about one-half hour, she signed the papers. Prior to the signing, Mr. Golde asked defendant if she fully understood and desired the settlement as set out and she said that she did. In affiant's opinion 'Mrs. Cope was completely competent throughout the time of this conference, and knew and understood the nature and meaning of the documents presented and explained to her by her attorney. It was apparent to me that she had not wanted to go to court, because she expressed herself as relieved as well as satisfied that the matter had been handled without her having actually to appear. Throughout the conference, she was sitting up in bed, was calm and appeared in full control of all of her senses.'

Dr. Boyes' affidavit also states: Affiant was present at a conference in Mr. Golde's office on September 7, 1962, at which time Mrs. Cope and Mr. Golde reviewed in detail the aspects of a proposed property settlement agreement. After much discussion there was agreement as to the terms of the papers to be drawn and submitted to the parties by September 11, 1962. In affiant's opinion, defendant was fully competent throughout this conference and knew and understood what was being decided and agreed upon.

Dr. Boyes' affidavit further states: He had continued to act as Mrs. Cope's psychiatrist after September 11, 1962. At no time since that date had Mrs. Cope ever told him that she believed she was incompetent or not acting voluntarily at the time she signed the property settlement agreement. At times she complained to affiant that she 'should have gotten more' but also recognized that if the case had been tried 'she might have gotten less.' In affiant's opinion, Mrs. Cope was not incompetent at the time of the conferences on September 7 and September 11, 1962, nor at any subsequent time.

Plaintiff's affidavit states: Prior to September 11, 1962, the date of the divorce hearing, he had agreed orally, through his attorney, to the terms contained in the property settlement agreement which he signed on September 11. Since that date Mrs. Cope had repeatedly told him that irrespective of the settlement and the court's orders, she was going to do everything possible to see that affiant did not obtain a final decree of divorce and that he stayed married to her.

The affidavit of defendant's attorney, Mr. Golde, ⁴ states:...