Harrold v. Harrold

• Decision Date: 25 November 1950
• Citation: 100 Cal.App.2d 601,224 P.2d 66
• Court: California Court of Appeals Court of Appeals
• Parties: HARROLD v. HARROLD. Civ. 7730.

Page 66

224 P.2d 66

100 Cal.App.2d 601

HARROLD v. HARROLD.

Civ. 7730.

District Court of Appeal, Third District, California.

Nov. 25, 1950.

David Livingston, Louis F. DiResta, San Francisco, for appellant.

Devlin & Devlin & Diepenbrock, Sacramento, for respondent.

PEEK, Justice.

Plaintiff, who was awarded an interlocutory decree of divorce on the ground of extreme cruelty, now challenges the financial provisions of the judgment and in particular the portion thereof providing for alimony and a division of the community property.

The record shows that the parties were married November 26, 1936 and first separated in the Fall of 1944, at which time plaintiff instituted an action for separate maintenance and a division of the community property. However, the action did not proceed to trial and in June of the following year the parties entered into a separation agreement which purported to settle all property rights arising out of the marriage and all claims which one might have against the other. Additionally the agreement provided that each relinquished all claims against future earnings of the other and all interests or rights in or to any property thereafter acquired by either. In September 1945 the parties became reconciled but again separated in March 1948. Following the last separation plaintiff filed a complaint for divorce which is the basis of the present proceeding. A hearing was had on September 24, 1948 but the interlocutory decree was not entered until February 15, 1949. The trial court found that the agreement of June, 1945, was fair and reasonable; that at the time of reconciliation the parties ratified and confirmed the same as to all past consideration but as to the executive provisions there of the parties, by their reconciliation, had abandoned the agreement; that the community property of the parties consisted of the residual sum of $1734.24; that the earnings of defendant commencing September 15, 1945 were earnings of the community and were derived from two certain automobile enterprises which were defendant's separate property. The court further found that $400 per month for a period of five years was a reasonable sum to be awarded plaintiff as permanent maintenance. From the foregoing findings the court concluded in part that the 'provisions as to such payment shall not be hereafter amended, altered either upward or downward by the Court or be in any manner, subject to revision hereafter.'

Approximately one month after the entry of the interlocutory decree two unpaid bills were discovered. These accounts had been contracted by plaintiff prior to the divorce proceedings but were not cleared in that action. Following an exchange of letters between the attorneys for the litigants the items were paid by respondent. In the letter of transmittal defendant's attorney stated that payment of the items in question, which included the community property awarded to plaintiff, was made 'upon the express condition that the litigation stands at an end.' Later in the same month appellant addressed a letter to defendant's counsel wherein she informed him that her attorney had turned over to her the file in the case and in reference to the letter above mentioned stated 'no one has, or has ever had, any authority from me to terminate this litigation and I intend to take an appeal.'

Following the institution of plaintiff's appeal in this court defendant moved to dismiss the same or affirm the judgment on the ground that appellant had availed herself of the judgment in her favor and in addition solicited and received a supplemental consideration upon the express condition that the litigation would stand at an end. Numerous other letters between the attorney, who was then counsel, and respondent were attached to defendant's motion.

While the general rule is, as stated by respondent, that when a judgment has been satisfied it "has passed beyond review,' for the satisfaction thereof 'is the last act and end of the proceeding", Klebora v. Klebora, 118 Cal.App. 613, 5 P.2d 965, 969, 973, however, that rule is subject to various limitations. Here the appeal is only from that portion of the judgment awarding her alimony and from the portion providing for the disposition of the community property. Stated otherwise, it is not from the judgment in her favor but is from that portion of the judgment denying her the full relief demanded. The question thus raised is precisely the same as was presented to the court in Clarke v. Angelus Memorial Association, 14 Cal.App.2d 750, 58 P.2d 974, 975, and in answer thereto the court stated: 'The law is settled that, where the only question on appeal is whether the recovery should be greater than that allowed by the trial court, the acceptance of the amount adjudged due is not inconsistent with the claim that the judgment is not large enough and the appeal may be maintained.' But respondent further argues in effect that even if such is the case, the acts of appellant personally in accepting the consideration mentioned and the acts of her counsel as evidenced by his communications, show a waiver or abandonment of the appeal. We cannot agree with such contention.

The applicable section, section 283, subdivision 1 of the Code of Civil Procedure provides that an attorney shall have the authority: '1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise'.

In discussing said section the court, in Cathcart v. Gregory, 45 Cal.App.2d 179, 187, 113 P.2d 894, 898, stated: 'The evident object of this section (sec. 283, Code Civ.Proc.) is that, whenever the attorney shall enter into an agreement for the purpose of binding his client, there shall be such a record thereof as will preclude any question concerning its character or effect, and that the extent of the agreement may be ascertained by the record'.

Thus, even though an attorney may have the implied authority to waive his client's right of appeal, Fawlkes v. Ingraham, 81 Cal.App.2d 745, 185 P.2d 379, a party is not bound by an oral agreement of his counsel to dismiss or abandon his appeal where no agreement or stipulation is entered in the minutes of the court. Beckett v. City of Paris Dry Goods Co., 26 Cal.App.2d 295, 79 P.2d 178. See also Price v. McComish, 22 Cal.App.2d 92, 70 P.2d 978.

Since it is our conclusion that the motion to dismiss must be denied we turn then to the questions raised by plaintiff in her appeal.

Appellant properly contends that there is no legal basis for the provision in the interlocutory decree which attempts to deprive the court of any future power to modify the judgment with respect to the alimony award. As stated in Soule v. Soule, 4 Cal.App. 97, 101, 87 P. 205, 206: 'The authority of the court to modify its decree in this respect [alimony] does not depend upon a reservation therefor in the decree itself, but exists by virtue of a statute, and, being conferred upon it by the Legislature, it is beyond its power to divest itself of such authority.' This conclusion merely reiterates the applicable statute that the court 'may from time to time modify its orders in these respects.' Sec. 139, Civil Code. It necessarily follows that since the court cannot divest itself of the authority to modify the decree in this regard appellant cannot claim she has in any way been injured thereby.

Appellant next attacks in various ways the court's computation and determination of the amount of community property arising out of the personal efforts of respondent in the conduct of two automobile enterprises which the parties agree to be his separate property.

At the hearing of the case plaintiff introduced as 'Plaintiff's Exhibit No. 4' a financial statement prepared by respondent for the years 1945, 1946 and 1947. Present counsel for appellant, who did not represent her at the hearing, now severely criticizes the information contained in said income statement. Specifically it is contended that certain compilations therein set forth prejudice plaintiff's rights in the community property; that the report contains mathematical errors; that the report erroneously charges the community with expenses for a period prior to the reconciliation and that it erroneously charges the community with a pro rata share of the defendant's...