Curtis v. Curtis

• Decision Date: 04 September 1952
• Docket Number: No. 5446,5446
• Citation: 248 P.2d 683,1952 NMSC 82,56 N.M. 695
• Parties: CURTIS v. CURTIS.
• Court: New Mexico Supreme Court

Page 683

248 P.2d 683

56 N.M. 695

CURTIS v. CURTIS.

No. 5446.

Supreme Court of New Mexico.

Sept. 4, 1952.

Rehearing Denied Oct. 20, 1952.

Grantham, Bratton & Spann, Albuquerque, for appellant.

Royall & Royall, Silver City, for appellee.

COORS, Justice.

The plaintiff instituted an action against the defendant for divorce and division of community property. The defendant answered and cross-complained, denying the existence of community property and setting up an agreement between the parties purportedly entered into as a separation agreement with division of the property, executed in 1936. The defendant also set up an affidavit executed by the plaintiff in 1941 confirming and ratifying the earlier agreement. The plaintiff argued that both of these instruments were executed because of the fraud of the defendant. The trial court gave judgment for the plaintiff.

On appeal the defendant raises the following points: (1) That the separation agreement with division of property between the parties was in all respects a valid agreement containing a disclosure of the description and extent of their community property and awarding to the plaintiff a fair division of the property and that she had independent legal advice. (2) That even if the original agreement might be held to be voidable, it was subsequently ratified by plaintiff. (3) That the attempt by plaintiff to set aside the separation agreement with division of property is barred by the statute of limitations or laches. (4) That there was no substantial evidence to support the findings and judgment of the court as to the value of the property of the parties at the time of trial, and that such findings and judgment are against the weight of the evidence.

The parties were married in Oklahoma in 1913 and four children were born to them, all of whom were of age at the time of this trial. After living in Arkansas and Oklahoma, the parties moved to New Mexico in 1919, and in 1921 settled in Catron County and homesteaded. The defendant worked for his brother part of each year, haying and doing odd jobs, and during the summer months he sold automobile accessories. In 1927 he and his wife bought an abandoned building in Quemado, New Mexico, and opened a general store. The plaintiff assisted her husband in the operation of the state while he attended to the business details and necessary purchasing. In addition, he spent some time freighting and hauling gas and merchandise for others. In 1930 the parties added to the store an auto camp, gaining additional revenue from the rental of cabins. In 1932 the defendant gave up his freighting business and secured a saline lease from the Commissioner of Public Lands of New Mexico on a salt lake near Quemado for purposes of obtaining, processing and selling salt.

So the parties continued until 1936, when an instrument was drawn entitled 'Separation Agreement with Division of Property.' This agreement recited certain unhappy differences had arisen between the parties and they were living separate from each other and it was their desire to settle and determine their property rights. The substance of the agreement provided the wife was to receive the store formerly operated by the parties, the auto camp and the fixtures and appurtenances to said property, the stock of goods, the good will of the business, the household furniture and all outstanding accounts due to the parties from the operation of the store; all notes and mortgages; a half section of land; a ford car; one-third of amount received upon contemplated sale of certain cattle and $3,290.20 in cash. The defendant was to receive the property known as the 'Lake Property' located at Salt Lake, New Mexico, including the lease therefor and all improvements thereon for the harvesting and storage of salt, the salt on hand and buildings and equipment; two-thirds of the proceeds from said sale of cattle; seven lots in Quemado; a half section of land and $3,290.20 in cash. The agreement further stated the property, as divided, was to be the sole and separate property of each, free from any claim thereto by the other party. Finally the plaintiff agreed to release all claims and demands of any nature, support, alimony, etc., thereafter arising by virtue of the marriage relation.

The testimony concerning the circumstances surrounding the execution of this agreement is in conflict. The wife testified in substance as follows: Her husband took her to Albuquerque in June, 1936, intending, he led her to believe, to effect a division of their property for income tax purposes. He had previously had her write to an attorney there, Mr. Joseph Gill, now deceased, stating she wished a division of the property. Upon that visit to Albuquerque they went to Mr. Gill's office where the husband told Mr. Gill the purpose of their visit. Thereafter the attorney and the defendant conferred in another room for about an hour and a half. The parties then left the office and returned to Quemado. On August 28, 1936, the defendant again brought the plaintiff to Mr. Gill's office in Albuquerque where the defendant stated they had come to sign the papers. The plaintiff then signed the agreement without reading it and did not receive a copy of it. No discussion was had as to the value of the property and the extent of her rights and interest in it. Throughout the entire transaction and for years following she believed the agreement was made solely for the purpose of reducing their income tax.

The defendant contradicted the testimony of the plaintiff regarding these circumstances in almost every particular.

The trial court found the plaintiff did not have at that time independent legal advice, or receive a full and fair disclosure of the extent and value of the community property and her rights therein; that she did not receive adequate consideration for the signing of said agreement and did not read the agreement or know it was intended to be a separation agreement with division of property; and that such agreement was procured by fraud on the part of the defendant.

After the agreement was executed the parties returned to Quemado, the plaintiff testifying they continued to live as before with the defendant spending part of his time in Quemado and part at Salt Lake. She further stated their affairs were conducted as before and that she attended to the daily operation of the store and cabins, while the defendant handled all the business transactions of the parties. Her testimony in this regard is corroborated in part by two other witnesses, daughters of the parties. The plaintiff further testified she did not learn until 1938 that the store property had been deeded to her. At that time the defendant recorded the property division agreement and gave her a copy of it. When she questioned him about it, he again led her to believe he had had it made and recorded solely to reduce their income tax. Other pertinent testimony of the plaintiff is as follows: The defendant handled all the bank deposits, even for accounts in the name of the plaintiff, and wrote out the checks. After writing out several he would being them to the plaintiff to sign and she would sign them without determining to whom they were going and for what. She relied on the defendant to manage their affairs and remained uninformed about the property and the conduct of their business.

The defendant testified he bought a bed and moved it and some of his personal belongings out to Salt Lake immediately after the execution of the separation agreement. But it is undisputed that he did return in a few weeks and the parties continued to live together as husband and wife until about a year prior to the institution of this action. However, their relationship was not harmonious and several divorce actions were filed and dismissed by each of the parties.

The plaintiff testified it was not until the first of the divorce actions was filed, in 1940, that she realized the defendant intended to use the separation agreement as a permanent division of their property. Thereupon she secured an attorney and filed of record an affidavit repudiating the separation agreement. A few months later she executed and filed a second affidavit, the purport of which was to withdraw the notice previously filed and fully ratify and confirm the property settlement of 1936. The plaintiff testified the defendant promised if she would execute this affidavit confirming the earlier agreement he would continue their marriage and care for and support her, leaving her well provided for in the event of his death. She aserted the defendant never had any intention of performing his promises and that in reliance upon them she executed the affidavit. The trial court found in favor of the plaintiff that the defendant obtained the affidavit by such false and fraudulent representations.

In cases involving an allegation of fraud on the part of one standing in a confidential relation to the one asserting the fraud, the courts frequently, if not generally, have no direct evidence as to the fraud except the assertion of it by one and the denial of it by the other. Of necessity the courts must look to the surrounding circumstances for corroboration of the statements of the parties. Trigg v. Trigg, 1933, 37 N.M. 296, 22 P.2d 119; Cardenas v. Ortiz, 1924, 29 N.M. 633, 226 P. 418. In the present case the attorney who prepared the separation agreement and property division was deceased at the time of the trial and no other witness was produced regarding the transaction. It is true the wife wrote to the attorney in the first instance, but she testified she did so at the insistence of her husband. Such fact is not improbable. Throughout the entire record the defendant is clearly the dominant spouse--both before and after the execution of the agreement, while the wife in subservience to him, and in attempts to mollify his rages, would agree to anything he demanded. Furthermore some of the acts of ...