Marriage of Elkins, In re
| Citation | 28 Cal.App.3d 899,105 Cal.Rptr. 59 |
| Court | California Court of Appeals |
| Decision Date | 22 November 1972 |
| Parties | In re the MARRIAGE of Robert L. and Darlene M. ELKINS. Robert L. ELKINS, Respondent, v. Darlene M. ELKINS, Appellant. Civ. 30786. |
Barry Wood, T. F. Cleland, Ukiah, for appellant.
Leo M. Cook, Ukiah, for respondent.
This is an appeal from a final judgment of dissolution of marriage and from an order denying appellant's motion to set aside the judgment. The motion was noticed for a date subsequent to the entry of the interlocutory judgment but before final judgment. Final judgment reserved appellant's right to move 'to have the interlocutory judgment vacated so far as division of property is concerned.' The motion is based on the fact, admitted by both sides, that because of concealment the community property actually was divided unequally, although the community property which was listed in the petition for dissolution was equally divided by the interlocutory judgment. This consisted of various funds on deposit amounting to $21,328.39, household furniture, and two automobiles. The unequal division, effected without the court's knowledge, favored the husband, although certain community property of the wife, too, was undisclosed to the court at the hearing on dissolution.
It is unnecessary to say more about the undisclosed community property held in the name of the wife than that it consists of an accumulation in the California Public Employees' Retirement System valued as of June 30, 1970, at $3,269.67; that she did not prepare the financial statement for the trial court's consideration at the hearing for dissolution; and that when the motion to vacate the judgment is heard again, the amount of this fund will be an offset against a contribution which will be required by the husband.
The subject on this appeal is the unreported accumulation of the husband in the California Public Employees' Retirement System which, at the time of the dissolution hearing, was valued at about $14,000. There was also an undisclosed asset of community property consisting of a life insurance policy, the estimated cash value of which was $1,000; but although this must also be included in the ultimate division of community property, it was not particularly the subject of dispute at the hearing of the motion. Altogether, the amounts taken by the husband equal about three-fifths of the amount of community property which was reported to the court and divided equally.
The evidence at the hearing of the motion to vacate the judgment consisted of declarations under penalty of perjury by the parties to the dissolved marriage and by counsel for the husband, and of testimony by the same three witnesses. Briefly summarized, the evidence given by the wife, both in the declaration and in her testimony, is: Her husband commenced the dissolution action, instructed her to go to the office of his attorney and sign whatever papers were presented to her, and threatened her with physical violence if she did not follow his directions. She signed because of fear for her safety. She denied, in effect, the alleged oral agreement. She was a legal secretary working for another attorney, but did only probate work for him and did not discuss her own case with him. She wrote the list of assets which were on the financial statement but put them down as her husband demanded. She signed in pro. per. approval as to form of the proposed interlocutory judgment. She read it before she signed it and it contains no reference to the husband's retirement fund. This was signed in the office of her husband's attorney. Her recollection is that she was not advised by the attorney of her right to independent legal advice. She testified that when the papers were handed to her by her husband's attorney, she understood the effect was merely to save the expense of service. She denied insisting that the husband select a particular counsel as a condition of dissolution.
The husband's account, taken from his declaration and his testimony, is that the omission of the retirement fund from the financial statement in the petition for dissolution was made because of an oral agreement between his wife and him that 'she would leave the retirement alone' if he would pay for the support of the couple's grandchild. Their 24 year old son was under court order to pay child support of $75 a month, was out of work part of the time, and had remarried. Respondent conceded that he is not under any legal compulsion to support the grandchild. He denied any threats or pressure against his wife and declared that he had acceded to her demand that he engage as counsel the attorney who did represent him at the dissolution hearing (who is not his attorney on this appeal). Respondent testified that he had explained to his attorney the agreement to offset the retirement fund against the agreement to pay for the grandchild's support.
Mr. Elkins' attorney was not asked directly whether his client had expained the matter of the omitted community property to him, as Elkins testified he had done. But in substance the attorney denied it, testifying that he lists all the community property that the parties claim, and that what they have that he doesn't know of he cannot list. He did not recall whether community property was discussed with the wife. He conceded that it must have crossed his mind that there would be retirement funds since Elkins worked for the state, but his files showed no claimed community interest in retirement funds. He had assumed that Mrs. Elkins would consult her employer or some other attorney. But he did not testify, nor was he asked, whether he made inquiry whether she had actually had legal advice.
The court denied the motion to vacate, saying...
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