Kalmus v. Kalmus

• Citation: 230 P.2d 57,103 Cal.App.2d 405
• Court: California Court of Appeals
• Decision Date: 12 April 1951
• Parties: KALMUS v. KALMUS et al. Civ. 17534, 17672, 17700.

Page 57

230 P.2d 57

103 Cal.App.2d 405

KALMUS v. KALMUS et al.

Civ. 17534, 17672, 17700.

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

April 12, 1951.

As Modified on Denial of Rehearing May 8, 1951.

Hearing Denied June 11, 1951.

C. Ray Robinson, James A. Cobey, Merced, Bruce Walkup, Dan L. Garrett, Jr., San Francisco, for appellant.

Jennings & Belcher, Los Angeles, (Louis E. Kearney, Los Angeles, of counsel), for respondents.

WHITE, Presiding Justice.

Appellant Natalie M. Kalmus and respondent herein Herbert T. Kalmus, were married in Massachusetts in 1902. On December 22, 1921, in an action instituted by appellant herein she secured a divorce by decree nisi from respondent Kalmus herein, which decree became final June 23, 1922. By the terms of this divorce decree, respondent Kalmus was ordered to pay to appellant herein the sum of $7,500 per year as alimony. It is conceded that such payments have been made continuously to the present date and are still being made by respondent Kalmus and being accepted by the appellant herein.

The record also reflects that at the time of the aforesaid divorce, respondent Kalmus delivered to or for the account of appellant in full and complete settlement of all his obligations to her (other than alimony) certain household effects, a $25,000 insurance policy, the sum of $5,000, 1,000 shares of stock of the Technicolor Motion Picture Corporation, and negotiable bonds of the total principal amount of $25,000.

In 1945 appellant made certain claims against respondent Kalmus, and as a result the parties entered into a contract, under the terms of which the respondent Kalmus paid to the appellant $36,625, and agreed that his estate would continue the payment of the $7,500 per year alimony for such period after his death as the said appellant should live. Under the contract, there was also paid appellant's counsel a fee of $7,500 for their services in connection with such contract. By this instrument, respondent Kalmus also undertook to pay to appellant for a period not exceeding three years, additional sums approximating $8,000 per year. In the contract, appellant acknowledged that the Massachusetts divorce decree was valid and in full force and effect and that she knew no valid or proper ground to vacate or modify the decree of divorce, and that she was not the common-law wife of respondent Kalmus. The contract provided that its acceptance by appellant and the payments therein provided for should be 'in full and complete satisfaction and settlement of, and in lieu of, all past, present and future claims, demands and liabilities, of every nature and discription whatsoever, against Herbert T. Kalmus, except those arising out of his obligations under this agreement'. No contention is made that this contract has ever been rescinded or that appellant ever tendered back any of the payments made thereunder.

The instant action is one commenced by appellant against respondent Herbert T. Kalmus for separate maintenance, dissolution of partnership, accounting and appointment of Receiver.

In view of the somewhat complicated situation presented because of three consolidated appeals being here involved, it might be helpful, in the interest of clarity, to set forth chronologically some of the pertinent events in the history of two California actions between the parties to this appeal, as well as a third subsequent action now pending in the Massachusetts courts between the same parties.

On July 21, 1948, appellant herein filed an action against respondent Herbert T. Kalmus, and Technicolor Motion Picture Corporation, et al., numbered 364,392 in the files of the Clerk of the Superior Court of Los Angeles County. Although this action is not involved in this appeal, reference to the same is made because the file therein was used in connection with a motion for continuance of the second action, which will be a subject of discussion on this appeal.

On July 21, 1948, in the aforesaid action, numbered 364,392, an order to show cause re alimony, court costs, attorneys' fees, etc., was issued returnable July 29, 1948.

On the last-mentioned date, respondent, with his counsel, appeared in response to said order to show cause and the same was thereupon dismissed.

On the same date appellant secured a new order to show cause, practically identical in form, directed to respondent Kalmus and returnable August 6, 1948.

When on August 6 respondent appeared in response to the last-named order to show cause, the matter was continued to October 25, 1948, and on said last-named date was continued to October 27 and again to November 9, 1948.

On October 20, 1948, appellant filed her second amended complaint for separate maintenance, dissolution of partnership and accounting, etc.

On October 28, appellant filed a request for dismissal of the above-named action numbered 364,392 and on the following day such dismissal was entered by the clerk.

On November 9, 1948, the aforesaid order to show cause was placed off calendar due to the fact that the action had been dismissed by appellant.

On November 4, 1948, appellant filed her complaint in the instant action, numbered 370,515. This complaint is concededly practically identical with the second amended complaint in the aforesaid action numbered 364,392 which, as heretofore pointed out, was dismissed.

On November 5, 1948, respondent Herbert T. Kalmus served and filed his answer and cross-complaint herein.

On November 4, 1948, counsel for appellant presented to the court, in chambers, a request for a new order to show cause. At the time such application was made respondent's counsel was also present. It appears that the court indicated it would issue the order to show cause and make it returnable on November 9, 1948, which was the same date upon which the previous order in the case which was dismissed was set.

On November 10, 1948, another order to show cause returnable November 29 and directed to respondent Kalmus, was issued by the court.

On November 29, 1948, hearing on the last-mentioned order to show cause was commenced, and after several days of hearing, the court, on December 10, 1948, made its minute order denying alimony pendente lite, attorneys' fees and costs to appellant.

On December 20, 1948, notice of appeal was given from the foregoing minute order of December 10, 1948.

On December 29, 1948, appellant filed in the courts of Massachusetts a complaint to vacate the aforesaid Massachusetts decree of divorce between the parties hereto.

On March 8, 1949, notice that the action here in question was set for trial on June 1, 1948, was given to appellant and such notice, together with proof of service, was filed in the office of the county clerk on the same day. At that time appellant was appearing in propria persona.

On May 24, 1949, appellant gave notice of a motion to be heard on May 31, 1949, to continue the trial when set, as aforesaid, for June 1, 1949. This motion was given by attorneys Clifford Thoms and David L. Sefman, who were then appearing as counsel for appellant.

On May 31, 1949, appellant's motion for continuance came on for hearing, was argued before the court and denied.

On June 1, 1949, the action was called for trial, at which time the foregoing attorneys Thoms and Sefman appeared as counsel for appellant, and counsel also appeared for the respondents herein. A motion made by Messrs. Thoms and Sefman to withdraw as counsel for appellant was granted. No previous notice of motion of such withdrawal had theretofore been given to counsel for respondents.

On June 1, 1949, the action proceeded to trial, following which the court ordered judgment that appellant herein take nothing and that respondent Herbert T. Kalmus was entitled to the relief prayed for in his cross-complaint. Findings of fact and conclusions of law were filed and the judgment was entered on June 13, 1949.

On August 9, 1949, appellant herein appealed from said judgment by serving and filing notice of such appeal on that date.

On September 21, 1949, appellant herein served a motion to set aside the aforesaid judgment on the ground that it had been obtained through mistake, inadvertence, suprise and excusable neglect.

On September 29, 1949, the motion to set aside the judgment was heard by the court and denied.

On December 1, 1949, an appeal was taken from the order of September 29, denying the motion to set aside the judgment pursuant to Section 473 of the Code of Civil Procedure.

Three appeals are thus presented to us to be considered, viz:

(1) An appeal from the judgment of the trial court;

(2) An appeal from the order of the court below refusing to vacate the aforesaid judgment; and

(3) An appeal from the order of the lower court denying appellant suit money and temporary alimony.

On the first appeal it is contended that reversible error was committed in rendering the judgment of June 13, 1949, because the denial of appellant's motion for a continuance was an abuse of discretion.

In this regard, as heretofore pointed out, the record reflects that on March 8, 1949, appellant, then appearing in propria persona, was served with notice that the cause was set for trial on June 1, 1949, in the department of the presiding judge. On May 24, 1949, appellant through her then attorneys, served on respondent Kalmus alone, a notice of motion for continuance and supporting affidavits. Hearing of said motion for continuance was noticed for May 31, 1949, the day before the trial date. No claim is made that appellant did not have actual notice of the trial date from the early part of March, 1949. In fact, she states in her brief that, 'It is true that appellant actually had more than the required five days notice. She has never claimed otherwise'.

As one of her grounds for continuance appellant urged disabling illness upon her part, supported by an affidavit of her physician in Massachusetts, where she was then residing. After...