Cornell v. Cornell, 5549

• Decision Date: 10 March 1953
• Docket Number: No. 5549,5549
• Citation: 256 P.2d 534,57 N.M. 170,1953 NMSC 15
• Parties: CORNELL v. CORNELL
• Court: New Mexico Supreme Court

Page 534

256 P.2d 534

57 N.M. 170

CORNELL v. CORNELL

No. 5549.

Supreme Court of New Mexico.

March 10, 1953.

Rehearing Denied May 6, 1953.

Further Rehearing Denied June 18, 1953.

See 258 P.2d 1143.

Rodey, Dickason, Sloan, Mims & Akin, Albuquerque, for appellant.

Martin A. Threet and Joseph R. McNeany, Albuquerque, for appellee.

PER CURIAM.

Upon motion for rehearing the original opinion is withdrawn and the following substituted therefor.

COMPTON, Justice.

This appeal involves the validity of a property right agreement. The parties have been married and divorced twice. The first marriage was terminated on June 13, 1947. They remarried July 15, 1948, and the second marriage was terminated by decree entered February 6, 1952.

Appellee charges in her complaint that during the marital status of the parties community property, in large amounts, was acquired by them and that she is entitled to one-half as her separate property. She further charges that the contract involved, signed by the parties on June 13, 1947 prior to the first decree, purportedly settling their property rights, was induced by fraud, duress and intimidation practiced upon her by appellant. She prays for a cancellation of the property settlement and that the decree approving the same be set aside.

The answer consists of admissions and denials. Appellant denies the existence of community property, except negligible amounts acquired during the second marriage, and prays for an equitable division of such subsequent acquired property. He specifically denies fraud and pleads res judicata, relying upon the decree rendered in the former divorce proceeding, approving the agreement. From an adverse judgment, appellant appeals.

The pertinent findings are:

'22. That Plaintiff's share of the community property, after paying all outstanding obligations against the community, was $49,250, as of June 13, 1947.

'23. That, in the property settlement under date of June 13, 1947, Defendant agreed to give and Plaintiff agreed to receive, as her share of the community property, the sum of $20,000, payable over a period of years at the rate of $3,000 a year; the automobile, household furniture, and one oil lease of the total value of $26,000.

'24. That at the time of the first divorce suit and the property settlement in 1947, the Plaintiff was inexperienced as to business affairs, and had no knowledge or information as to the value of the community property; that in the property settlement of June 13, 1947, no values were placed upon the community property and Plaintiff was not advised by the Defendant, her attorney, or anyone else as to what the net value of the community property was at the time she executed the Property Settlement Agreement.

'25. That in the property settlement of June 13, 1947, Plaintiff was entitled to one-half of the net value of the community property in the sum of $49,250. She was to receive, under the Property Settlement Agreement, the total sum of $26,000, leaving a balance due her as her one-half of the community property, the sum of $23,250.

'26. That Plaintiff was not fully advised as to the true values of the community property at the time the property settlement was executed between Plaintiff and Defendant, so that she would be placed upon equal footing with the Defendant in order that she might have sufficient information and knowledge in making the property settlement.

'27. That neither the Defendant nor the Plaintiff's attorney advised the Plaintiff or gave her any information as to the value of the community property, so that she might intelligently deal with the Defendant in the property settlement, and their failure to so do, and especially the failure of the Defendant to fully advise the Plaintiff as to the true values of the community property constituted fraud upon the Plaintiff in connection with the settlement of the community property under date of June 13, 1947.

'28. That the Defendant has failed to discharge the burden placed upon him to show that he made a full disclosure as to the rights of the Plaintiff and the value and extent of the community property and the payment of an adequate consideration therefor and because of the fraud practiced upon the Plaintiff in the Property Settlement Agreement of June 13, 1947, such agreement is void as to the Plaintiff and should be set aside and held for naught.'

In an opinion explanatory of its decision, the court reluctantly, but specifically found that appellee ...