Marriage of Gonzalez, In re

CourtCalifornia Court of Appeals
Writing for the CourtHASTINGS; STEPHENS, Acting P.J., and ASHBY
Citation57 Cal.App.3d 736,129 Cal.Rptr. 566
PartiesIn re the MARRIAGE OF Virainia Thorpe and Thomas P. GONZALEZ. Virginia Thorpe GONZALEZ, Plaintiff and Respondent, v. Thomas P. GONZALEZ, Defendant and Appellant. Civ. 46358.
Decision Date27 April 1976

Page 566

129 Cal.Rptr. 566
57 Cal.App.3d 736
In re the MARRIAGE OF Virainia Thorpe and Thomas P. GONZALEZ.
Virginia Thorpe GONZALEZ, Plaintiff and Respondent,
Thomas P. GONZALEZ, Defendant and Appellant.
Civ. 46358.
Court of Appeal, Second District, Division 5, California.
April 27, 1976.
Hearing Denied July 1, 1976.

[57 Cal.App.3d 739]

Page 567

Kadison, Pfaelzer, Woodard, Quinn & Rossi, Morris Pfaelzer, William Vetter, and Margaret M. Morrow, Los Angeles, for defendant-appellant.

Paul Caruso, Beverly Hills, for plaintiff-respondent.

HASTINGS, Associate Justice.

Thomas P. Gonzalez (husband) seeks review of a judgment and an order made during the course of a dissolution of marriage proceeding initiated against him by Virginia Thorpe Gonzalez (wife). The judgment set aside the Marital Settlement Agreement (agreement) executed by the parties on August 25, 1970, on the grounds that it [57 Cal.App.3d 740] had been signed by wife as a result of duress, mistake of fact, and mistake of law. The order directed that husband pay on account of services already rendered and services to be rendered in connection with a prospective trial of the property rights of the parties, $9,832.17 in attorney's fees and accountant's fees and costs on behalf of wife.

Wife filed her petition for dissolution of warriage on January 16, 1970. Her first attorney subsequently took husband's deposition, employed accountants to examine the books and records of husband's business, the Thos. P. Gonzalez Corporation (corporation), and examined the records of husband and his business at the offices of the Crocker-Citizens National Bank. Approximately four months after filing her petition, wife substituted in another firm of attorneys, and again one month later substituted in a third attorney who represented her until after she signed the agreement. Wife's third counsel found that discovery to date was incomplete, and that numerous aspects of the issues involved therein remained unanswered. However, the court found that during the time he was employed as wife's counsel (June 3 to August 25, 1970), he conducted no further discovery.

The agreement provided with certain exceptions that all property interests of the parties were the separate property of husband, whether previously held in his name alone or in the name of wife alone. Husband was required to pay to wife $1,500 spousal support per month, and an additional $100 per month for each child living

Page 568

with her and under the age of 21, 1 and $3,000 outright upon signing of the agreement. Husband was further required to pay any tuition incurred at private educational institutions on behalf of the children as well as their major medical expenses. Finally, husband was to acquire for an amount to not exceed $100,000 a home for wife and the children in a suitable residential area, and to assume the responsibility for the payment of real property taxes, interest and amortization, fire insurance, and the cost of any structural maintenance. 2

On November 19, 1970, wife substituted Harvey Himmel as her attorney, and on November 23, 1970, she filed a notice of rescission of the agreement, alleging numerous grounds.

[57 Cal.App.3d 741] On February 12, 1974, wife substituted the law offices of Paul Caruso (Caruso) in place of Harvey Himmel, and the trial re the validity of the agreement was held on August 1 and 2, 1974 in the superior court of Los Angeles. After hearing testimony and receiving evidence, the trial court ruled in favor of wife and ordered the agreement null and void. The trial court made extensive findings. 3 In essence, they found that husband threatened and intimidated wife that unless she signed the

Page 569

agreement she would lose the children, by husband's use of legal or illegal means, and that she would find herself in the street with nothing. Wife was found to [57 Cal.App.3d 742] be under great emotional stress and fearful of husband while negotiations were underway, and she signed the agreement when she was extremely distraught.

The conclusions of law (paraphrased) simply state that wife signed the agreement under duress, coercion, mistake of law and mistake of fact.

At the conclusion of the trial, Caruso requested attorney's fees and costs, and after submission of the issue the trial court ordered the fees and costs in the amount stated earlier.


1. Should a woman who began an investigation of the nature of the parties' property, which she never completed, who spoke with her husband only four to give times during the period prior to her signing, and who was at all relevant times represented by independent counsel, now be allowed to rescind an executed marital settlement agreement by claiming duress, mistake of fact, and mistake of law?

2. Should an award of attorneys', accountants' and appraisers' fees and costs be allowed to stand where the trial court had before it no evidence demonstrating either the wife's financial need or the nature and reasonableness of the services performed, and where it apparently failed to consider the evidence presented to it concerning the posture of the litigation, the amount of fees previously paid by the husband and his current financial position?


Husband argues that the trial court erred on numerous issues. Inasmuch as we affirm the judgment because the record clearly supports rescission of the agreement on the ground of duress, we set forth only his contentions on this issue.

[57 Cal.App.3d 743] He first argues that he did nothing that approximates duress as defined in Civil Code section 1569 4 because wife was not confined unlawfully or against her will, nor was her property unlawfully detained. Indeed, he states, the facts belie such a conclusion because (1) he and wife, at all times following the institution of divorce proceedings, lived separate and apart and there was no unlawful detention of her property 5 and (2) the essence of duress is unlawful action and his threats to exercise his legal rights did not meet this criterion. (Citing London Homes, Inc. v. Korn, 234 Cal.App.2d 233, 239--240, 44 Cal.Rptr. 262; Konecko v. Konecko, 164 Cal.App.2d 249, 252, 330 P.2d 393; and Yost v. Yost, 116 Cal.App.2d 572, 578, 253 P.2d 696.)

(1) Husband's interpretation of duress as defined by section 1569 is much too limited and does not take into consideration decisional law that has interpreted its language to apply to facts similar to this

Page 570

case. Actual confinement of a person or his property, as argued by husband, is not required. Menace is (1) a threat of unlawful confinement of the persons specified in the section, (2) a threat of unlawful and violent injury to the person or property of any such person. (1 Witkin, Summary of Cal.Law (8th ed. 1973) Contracts, § 339, p. 287.) And an unlawful act, to constitute duress, may be either a tort or a crime. (1 Witkin, Summary of Cal.Law (8th ed. 1973) Contracts, § 337, p. 284.) Husband's acts fall within both categories, and the decisional concept of duress. Serveral cases outline the acts of a party that constitute duress sufficient for rescission of a contract. In Balling v. Finch, 203 Cal.App.2d 413, 21 Cal.Rptr. 490, the court, beginning on page 418, 21 Cal.Rptr. 490 adopted the following language from Lewis v. Fahn, 113 Cal.App.2d 95, 98--100, 247 P.2d 831, 833:

'By many if not most of the modern authorities, however, the true doctrine of duress is held to be that a contract . . . obtained by so [57 Cal.App.3d 744] oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress . . ..

'There is no legal standard of resistance with which the person acted upon must comply at the peril of being remediless for a wrong done to him, and no general rule as to the sufficiency of facts to produce duress. The question in each case is, Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Hence, under this theory duress is to be tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim. The means used to produce that condition, the age, sex, state of health, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his will power. Obviously what will accomplish this result cannot justly be tested by any other standard than that of the particular person acted upon. His resisting power, under all the circumstances of the situation, and not any arbitrary standard, is to be considered in determining whether there was duress.' (Emphasis in original.) (17 Am.Jur., Duress and Undue Influence, pp. 882--885.)

And in Gross v. Needham, 184 Cal.App.2d 446, 7 Cal.Rptr. 664, on page 461, 7 Cal.Rptr. on page 672, the court states: 'Duress, which includes whatever destroys one's free agency and constrains him to do what is against his will, may be exercised by threats, importunity or any species of mental coercion (9 Cal.Jur.2d, Cancellation of Instruments, § 16.) June (wife) testified about an argument immediately preceding the execution of the instrument; according to her testimony, Dan (husband) stated: 'Well, the time's getting short now and I'm tired of arguing over it, something is going to be done today, and I mean now.'; later during this same argument which lasted from three o'clock until five or five-thirty, Dan declared: 'We've only got about an hour or half hour left and it's getting close for that notary to close . . . You are going to have to sign today...

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