Marriage of Nicolaides, In re

• Decision Date: 16 May 1974
• Docket Number: No. 1850,1850
• Citation: 39 Cal.App.3d 192,114 Cal.Rptr. 56
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Eva L. and Minas E. NICOLAIDES. Eva L. NICOLAIDES, Appellant, v. Minas E. NICOLAIDES, Respondent.

Page 56

114 Cal.Rptr. 56

39 Cal.App.3d 192

In re the MARRIAGE of Eva L. and Minas E. NICOLAIDES Eva L. NICOLAIDES, Appellant, v. Minas E. NICOLAIDES, Respondent.

No. 1850.

Court of Appeal, Fifth District, California.

May 16, 1974.

[39 Cal.App.3d 195] Victor M. Cox, Los Angeles, for appellant.

Mack, Bianco, Means & Mack, H. C. Mack, Jr., Bakersfield, for respondent.

OPINION

FRANSON, Associate Justice.

FACTS

On June 11, 1969, after fifteen years of marriage, respondent husband filed an action for divorce against his wife, the appellant. On June 18, 1969, the parties entered into a marital settlement agreement. The essential provisions of the agreement were that respondent husband would receive custody of the minor children and receive as his share of the marital property a 1968 automobile, $1,000 in cash, 30 shares of Litton Corporation common stock and certain household furniture; appellant wife was to receive a 1968 automobile, approximately $4,000 in cash from the sale of their residence and certain household furniture. The husband agreed to pay all obligations incurred by the parties prior to the date of separation including payments on the wife's automobile.

A support clause provided that the husband pay the wife 'for her support and maintenance, and as and for alimony' $350 per month for a period of three years and $250 per month for a period of two years. Payments were to begin in July 1969 and continue through June 1974. No provision was made for termination of support payments in the event of the death or remarriage of the parties.

The agreement expressly provided that it was the purpose of the parties 'to make an integrated agreement to effect a final and complete settlement of (their) rights with reference to each other, including (their) respective property rights and to provide for the future support of wife and the minor children.' The parties further provided: '(E)xcept as otherwise provided in this agreement, each of us releases the other from any and all liabilities, debts and obligations of every kind and character, that have been or will be incurred, and from any and all claims and demands, including all claims that either of us may have upon the other for support and maintenance as wife or as husband, it being understood that by this present agreement, we intend to settle all aspects of our marital rights.' The last paragraph of the agreement stated that 'this agreement is entire. We may not alter, amend or modify it except by an instrument in writing executed by both of us, and includes all representations of every kind and nature made by each of us to the other. This agreement shall be binding upon and enure to the benefit of both of us and of our heirs, executors, administrators, successors and assigns.' The agreement was apparently prepared by the husband's attorney.

On July 23, 1969, respondent husband obtained an interlocutory judgment of divorce in a default proceeding. The interlocutory judgment approved the property settlement agreement and ordered 'all terms and conditions' carried into effect by the parties. However, unlike the agreement, the interlocutory decree included a provision that the support obligation should continue through June 1974 'unless terminated at an earlier time by death or remarriage of (the wife).' Copies of the interlocutory decree were mailed by the husband's attorney to the wife's attorney.

On January 15, 1970, a final judgment dissolving the marriage was entered. On May 9, 1970, the wife remarried.

On April 5, 1971, the wife filed a notice of motion for order Nunc pro tunc to conform the interlocutory and final decrees to the terms of the property settlement agreement on the basis of extrinsic fraud or mistake. The wife's declaration in support of her motion states that she did not appear at the default divorce proceeding because she had reached an understanding with the husband that the property settlement agreement would be presented to the court and incorporated into the interlocutory decree with no changes; that based on that understanding she allowed the hearing to proceed without being present or represented by counsel and that if she had known the terms of the property settlement agreement would be altered she would have been present in court to protect her interests.

She further states that she did not know or realize that there was a difference between the property settlement agreement and the interlocutory decree in respect to the payment due her until approximately November of 1970 when she requested her new attorney to attempt collection of the amounts past due under the agreement.

A declaration of her former attorney states that about August 11, 1969, he received from husband's attorney two copies of the interlocutory decree and that he assumed the decree conformed to the marital agreement with which he was only 'vaguely familiar'; he acknowledges that a copy of the decree was forwarded to wife. ¹

On May 1, 1972, the trial court entered an order denying wife's motion to conform the judgments to the property settlement agreement. The wife has appealed from this order under Code of Civil Procedure section 904.1(b) as an order made after judgment. (See Rooney v. Vermont Investment Corp., 10 Cal.3d 351, 358--359, 110 Cal.Rptr. 353, 515 P.2d 297.)

DISCUSSION

Property and support provisions of an integrated marital settlement agreement which have been incorporated into a decree of divorce may properly be set aside or modified after the time for appeal or other direct attack has expired upon a showing of extrinsic fraud or mistake relating to those provisions. (Lopez v. Lopez, 63 Cal.2d 735, 737--738, 48 Cal.Rptr. 136, 408 P.2d 744; Jorgensen v. Jorgensen, 32 Cal.2d 13, 18--23, 193 P.2d 728.) Where extrinsic fraud or mistake is present the concept of divisible divorce permits the court to effect changes as to the property divisions of a divorce decree without disturbing that part of the decree terminating the marriage. (Lopez v. Lopez, Supra, 63 Cal.2d at p. 737, 48 Cal.Rptr. 136, 408 P.2d 744; Hull v. Superior Court, 54 Cal.2d 139, 147--148, 5 Cal.Rptr. 1, 352 P.2d 161.)

Extrinsic fraud usually arises where a party is denied a fair adversary hearing because he or she was in some way fraudulently prevented from presenting a claim or defense. Where the ground of relief is not so much the fraud or misconduct of the defendant as it is the Excusable neglect of the party to appear and make the proceeding a fair adversary hearing, the basis for equitable relief is extrinsic mistake. (Kulchar v. Kulchar, 1 Cal.3d 467, 471, 82 Cal.Rptr. 489, 462 P.2d 17.) The wife's declaration that she did not appear at the divorce proceeding because she had reached an understanding with husband that the property settlement agreement would be presented to the court and incorporated into the interlocutory decree without change, is unchallenged. Although she probably would have discovered the variance through a detailed examination of the decree, her failure to do so is excusable. Nothing was done to call her attention to the fact that the decree provided for termination of support payments if she remarried (see Lopez v. Lopez, Supra, 63 Cal.2d at p. 737, 48 Cal.Rptr. 136, 408 P.2d 744) and the decree, on its face, purported to carry into effect 'all terms and conditions' of the agreement.

It has also been held that where a marital settlement agreement is entire or 'integrated', the court ordinarily must approve or disapprove the entire agreement. (See Wright v. Wright, 148 Cal.App.2d 257, 270, 306 P.2d 536; 3 Witkin, Summary of California Law, Husband and Wife, § 132, p. 2675.)

In Plumer v. Plumer, 48 Cal.2d 820, 824--825, 313 P.2d 549, 552, the court discussed the concept of an integrated agreement:

'An agreement is integrated if the parties have agreed that the provisions relating to division of property and the provisions relating to support constitute reciprocal consideration. The support provisions are then necessarily part and parcel of a division of property . . . It is immaterial whether or not the marital property is divided equally . . . (Citations) It is immaterial that the amount of the marital property is small . . . (Citations) It is likewise immaterial that the agreement calls for payments for 'support' or 'alimony' . . .. (Citations)'

The court went on to state:

'An agreement providing that the purpose of the parties is to reach a final settlement of their rights and duties with respect to both property and support, that they intend each provision to be in consideration for each of the other provisions, and that they waive all rights arising out of the marital relationship except those expressly set out in the agreement, will be deemed conclusive evidence that the parties intended an integrated agreement . . .. (Citations)'

It has also been held that an express waiver by the wife of a right to support and maintenance other than as provided in the agreement is persuasive evidence that the support provisions are inseparable from the property division provisions. (See Dexter v. Dexter, 42 Cal.2d 36, 41, 265 P.2d 873; Biagi v. Biagi, 233 Cal.App.2d 624, 631, 43 Cal.Rptr. 707.) The absence of any statement that the support provisions constitute reciprocal consideration for the property provisions is not conclusive if there is other proof of the parties' intent. (See Plumer v. Plumer, Supra, 48 Cal.2d 820, 825, 313 P.2d 549; DiMarco v. DiMarco, 60 Cal.2d 387, 391--392, 33 Cal.Rptr. 610, 385 P.2d 2; cf. Beckett v. Beckett, 272 Cal.App.2d 70, 78--79, 77 Cal.Rptr. 134.)

Whether the parties intended an integrated bargain must be ascertained from the terms of the agreement and any extrinsic evidence received in aid of its interpretation. In the absence of conflicting extrinsic evidence as to the meaning of the agreement, the question of whether the parties intended an integrated bargain is one of law and the trial court's interpretation...