Lopez v. Lopez

• Decision Date: 28 June 1965
• Citation: 45 Cal.Rptr. 405
• Court: California Court of Appeals Court of Appeals
• Parties: Esther F. LOPEZ, Plaintiff and Respondent, v. Gilbert D. LOPEZ, Defendant and Appellant. Civ. 424.

Page 405

45 Cal.Rptr. 405

Esther F. LOPEZ, Plaintiff and Respondent, v. Gilbert D. LOPEZ, Defendant and Appellant.

Civ. 424.

District Court of Appeal, Fifth District, California.

June 28, 1965.

Rehearing Denied July 26, 1965.

For Opinion on Hearing, see 48 Cal.Rptr. 136, 408 P.2d 744.

Oren, McCartney & Sells and Donald E. Oren, Fresno, for defendant and appellant.

Doty, Quinlan & Kershaw, Meux, Gallagher, Baker & Manock and Kendall L. Manock, Fresno, for plaintiff and respondent.

RALPH M. BROWN, Justice.

After entry of an interlocutory decree of divorce ¹ approving and incorporating by attaching a copy and making a part by reference a property settlement agreement, and a final decree of divorce, the plaintiff moved (not under Code of Civil Procedure section 473) in the original divorce action to have set aside both decrees and the agreement on the ground of fraud on the part of defendant. The defendant, who is an attorney at law, appeals from the order granting that motion.

The controversy revolves around the question of the time of termination of alimony payments. The plaintiff contends that she is entitled to receive the sum of $200 per month as alimony until she remarries or until her demise, pursuant to an agreement, stipulation and minute order

The order here under attack had its genesis in a bitterly contested divorce action in which the plaintiff had filed a complaint based upon the grounds of adultery and mental cruelty and ultimately obtained a default interlocutory decree of divorce, but on the grounds of cruelty, though evidence of adultery was introduced.

The plaintiff and defendant were married in 1950 and had one child who was nine years of age at the time of the divorce. Plaintiff instituted an action for divorce; negotiations for settlement of the division of property were unrewarding and the matter was set for trial.

On the date of the trial the attorneys for the respective parties advised Judge Ginsburg that they wanted to enter into a stipulation of record and that unless the stipulation was of record they feared the parties might change their minds. The attorney for the defendant stated to the court that there were large items of community property and the question of custody and support and that lesser details not completely agreed upon would in time be reduced to writing and included in the stipulation. A list of the real and personal property owned by the parties was introduced into evidence and the attorney for defendant detailed at length the division of the property. It was stipulated that the plaintiff have custody of the minor child, with visitation rights on terms to be set out in the written agreement, and regarding support and maintenance, the attorney for defendant stipulated that the plaintiff was to receive the following:

'MR. HYDE [Attorney for defendant]: * * * In addition thereto, it is stipulated the defendant shall pay as and for support and maintenance of plaintiff herein the sum of $200. per month as and for the support and maintenance of the minor child the sum of $300. per month, making a total of $500. May it be stipulated each of the items may be paid one-half on the first of the month and one-half on the 15th of the month, or may we stipulate those items be broken down weekly?'

The court's minute order made pursuant to the stipulation set forth the various parcels which were to go to the respective parties and further stated:

'The defendant shall pay the sum of $200 per month on account of support of plaintiff and $300 per month on account of support of the child, payable weekly on the first four Wednesdays of each month.'

It will be noted that there was no termination date for the payment of alimony mentioned in either the stipulation or the minute order.

Thereupon, the matter was continued to be heard as a default matter and the attorney for defendant prepared a rough draft of the property settlement agreement. This was submitted to the defendant personally, and to this draft were added the words 'or husband,' so that the final draft of the agreement in the pertinent part read as follows:

'Husband agrees to pay to Wife for her support and maintenance, the sum of $200.00 per month commencing on the 28th day of November, 1962. Said payments shall continue until such time as said wife or husband shall die or remarry.' (Italics added.)

The other portions of the property settlement agreement were in line with the stipulation except for some minor items of insurance, which had no value or are of no significance here.

The formal agreement signed by the defendant was obtained by plaintiff's counsel at the office of defendant's attorney during the latter's absence, without discussion. The attorney for plaintiff testified that he read only the provisions for the division of community property and checked the properties therein described against the list which had been used at the time of the stipulation; that he was unaware of the change in the alimony provision. The plaintiff in due time picked up the agreement and she testified that she did not read or see this provision as far as terminating the alimony to her in the case of her husband's remarriage was concerned and that she took the agreement home and put it in the safe deposit box and at all times believed that she was to receive alimony until she remarried or died.

Plaintiff's attorney testified concerning his failure to read the provision providing for alimony, as follows:

'When we appeared in Court on November 20th, at the time of the trial, and then the subsequent agreement, it was may understanding that the stipulation that was being entered into was setting out the actual agreement that was being drafted. It had been my experience that any time in which there had been any changes ever made in any stipulation by any attorney, that I would be notified as I have done the same myself on several occasions when there had been some change. I therefore assumed that the agreement itself, beasically, was the same as the usual form type of property settlement agreement, and therefore the only real need was to check the property settlement agreement itself as regards the description of the property in case there had been a typographical error and to make certain that we had covered the points that had been covered in the stipulation.'

Plaintiff's attorney further testified:

'Perhaps you are correct in the ordinary situation where the agreement is being submitted is one in which there is still negotiation going on. I do not feel that that was this case. I feel that this case was a situation of merely reducing to writing the stipulation that was entered into at the time of the February [sic] hearing.'

Still without knowledge of the difference between the stipulation and the written agreement, the matter was heard on the complaint of the plaintiff as a default case, the divorce being granted on the grounds of extreme Cruelty. The defendant was ordered to pay the plaintiff $200 per month for her support and $300 per month for the support of the minor child, payable according to the terms of the property settlement agreement attached thereto and made a part thereof by reference, and the court confirmed, approved and adopted the agreement and ordered the parties to abide by it.

Thereupon, in due course, the defendant on December 6, 1963, obtained a final decree of divorce which incorporated the provisions of the property settlement agreement insofar as custody, child support and alimony were concerned, but included no amounts or dates of termination thereof. After obtaining the final decree the defendant, in that same month, remarried, and refused thereafter to pay any alimony to the plaintiff.

Plaintiff's motion to vacate was heard by the court under its general equity powers, and the court vacated the decrees of divorce and set aside the property settlement agreement.

In a formal order prepared by Judge Ginsburg, who also presided at the time the stipulation was made, he ordered the defendant to pay plaintiff all sums accruing under the provisions of the stipulation which had been entered. In this order the court, in an 8-page document, set forth all the facts in connection with this matter and several informal findings. The trial court quoted Mr. Hyde as saying at the time of the stipulation:

'I might suggest a further stipulation, that being a further stipulation that upon the reduction of this agreement to writing either party might apply to the Court for default hearing in this connection.'

The court also set forth that the defendant was an attorney at law with many years' experience, that he had handled many divorce matters, that he was personally present in court at the time the stipulation was made, that the court specifically found that the defendant did not testify truthfully in stating that he was under the impression that the stipulation related to temporary alimony rather than to permanent alimony, that he was well aware of the nature of the hearing of May 22, 1964, which was the hearing at which the stipulation was entered into, and the nature of the stipulation and of the difference between temporary and permanent alimony. Furthermore, the court found that Mr. Hyde had testified that it was his custom and was the custom of attorneys in general to recite by letter of transmittal any changes that had been made when an oral agreement was reduced to writing, but admitted there had been no discussion with plaintiff's attorney nor did he send any letter of transmittal or point out the change in the agreement. The court found that the plaintiff was under nervous strain due to the adulterous acts of the defendant and had no reason to believe other than that the alimony would be permanent inasmuch as there had never been any discussion along these lines and she had been present in court when the stipulation was entered into and that payment of alimony was a moving consideration for her in...