Lane v. Bradley

• Decision Date: 22 April 1954
• Citation: 124 Cal.App.2d 661,268 P.2d 1092
• Court: California Court of Appeals Court of Appeals
• Parties: LANE v. BRADLEY. Civ. 15716.

Page 1092

268 P.2d 1092

124 Cal.App.2d 661

LANE v. BRADLEY.

Civ. 15716.

District Court of Appeal, First District, Division 2, California.

April 22, 1954.

Rehearing Denied May 21, 1954.

Hearing Denied June 16, 1954.

Sullivan, Roche, Johnson & Farraher, San Francisco, for appellant.

Aaron N. Cohen, Sidney Rudy and Allen M. Singer, San Francisco, for respondent.

NOURSE, Presiding Justice.

This is an action by a former wife against her former husband for payment of 40% of his net income due her under the provisions of their Nevada final divorce decree of June 24, 1946 which approved and incorporated by reference a property settlement agreement of May 14, 1946. The percentage of income so claimed related to a period subsequent to the remarriage of the wife. The court sitting without a jury heard evidence as to the financial circumstances under which the property settlement was made and concluded: 'That plaintiff's right to receive forty per cent of the net income of defendant as provided in said Decree has not terminated or been diminished by reason of the remarriage of plaintiff or for any other reason.' Judgment was for plaintiff as prayed for and defendant appeals, urging, as he did in the trial court, that said payments, as a matter of law, were payments for the support of the wife, which under sec. 139, Civil Code, terminated on her remarriage.

The following is the substance of the most relevant recitals and provisions of the property settlement agreement:

The parties have property both community and separate; they desire to agree to a permanent separation and to determine their respective property rights, to adjust all rights and claims of each as against the separate property of the other and as against the community property of both and all claims against each other and to provide for the care and custody of their minor children. The agreement is intended as a property settlement agreement referring to property rights only and not to constitute any condonation or bar to a divorce action.

2. The husband grants to the wife certain real and personal property. 3. He agrees to pay the premiums on certain life insurance policies of which the wife is the beneficiary and not to change the beneficiary during her life time. 4. The wife shall have the right to occupy the Scott street home during her life time rent free, she to pay for maintenance and repair, the husband to pay taxes, insurance and installments and interest of a loan. The right of rent free occupation continues in case of remarriage of the wife, but she must then pay the taxes and insurance. If the wife gives up the occupation the home shall be sold and the net proceeds be divided equally between the parties.

5. The husband shall deposit in escrow as security for his obligations under the agreement certificates of 40,000 shares of Bradley Mining Company stock on the conditions, among others, that the stock and dividends remain his separate property, but that the wife has the right to have the shares in whole or in part sold at a price to be specified by her, the proceeds then to be hers. 6. Commencing January 1, 1947, the husband shall pay the wife 40% of his net income, exclusive of capital gains and losses and capital distributions, but before deduction of income taxes and charitable contributions, less one per cent for each 1000 shares of stock the wife will have had sold under the preceding provision. If the payments to be made to the wife shall be included in the husband's taxable income the wife will pay a proportional part of the husband's income tax. 8. Upon the death of the wife the escrow shall terminate and the property still on deposit shall vest in the husband as trustee, he to have the income during his lifetime and on his death the principal to vest in the children of the parties or their issue.

9. The wife shall have the custody of the children, the husband all reasonable right of visitation. The parties shall contribute to the support and maintenance of the children in proportion to their respective financial ability.

14. The husband agrees to make a will containing the following irrevocable dispositions:

(a) to bequeath to the wife the property still in escrow or the proceeds thereof, in full discharge of the husband's obligation to make further payments; (b) to devise and bequeath 50% of the rest of his estate to the wife as trustee, she to have the income during her lifetime and on her death the principal to vest in the children of the parties or their issue.

15. Except as hereinabove otherwise provided, all that is in the possession or in the name of each party shall be that party's separate property. Performance by the husband of this agreement shall constitute full satisfaction of all claims of the wife against him and against his separate property and the community property and of her right to support, maintenance or alimony. 18. This property settlement agreement shall be submitted for approval to the court in an action for divorce or separate maintenance and shall become binding only upon such approval. 19. The agreement shall bind the parties and their heirs, executors, administrators and assigns.

Appellant contends that the above agreement as incorporated in the Nevada decree, according to its contents and its description in the Nevada complaint and decree did not only provide for settlement of the property rights of the...