Mazour v. Mazour

• Citation: 180 P.2d 103,64 Nev. 245
• Decision Date: 09 May 1947
• Docket Number: 3472.
• Parties: MAZOUR v. MAZOUR.
• Court: Supreme Court of Nevada

180 P.2d 103

64 Nev. 245

MAZOUR v. MAZOUR.

No. 3472.

Supreme Court of Nevada

May 9, 1947

Appeal from District Court, Second District, Washoe County; A. J Maestretti, Judge.

Action by Lucile Jackson Mazour against Anatole G. Mazour for cancellation on ground of fraud, etc., a property settlement contract entered into between plaintiff and defendant and which contract had been ratified in a divorce action in which plaintiff sued defendant for divorce, wherein defendant filed a demurrer. From an adverse judgment, plaintiff appeals.

Affirmed.

D. W Priest, of Reno, for appellant.

Springmeyer & Thompson, of Reno, for respondent.

BADT Justice.

On October 17, 1945 appellant filed in the Second Judicial District Court a complaint praying for the cancellation, on the ground of fraud, duress and undue influence, of a certain property settlement contract entered into between appellant and respondent on May 16, 1944, which said contract had been ratified, approved and confirmed on said date by said court in a divorce action in which the appellant was plaintiff and the respondent was defendant. Such original action may be referred to as the 'divorce action.' The second action seeking to set aside and cancel the property settlement agreement may be referred to as the 'equity action.' Appellant herein was the plaintiff in both actions, and respondent was the defendant in both actions. The decree in the divorce action granted the plaintiff a divorce upon the grounds of extreme cruelty, gave her the custody of the minor child of the parties, subject to right of visitation on the part of the defendant, required the defendant to pay $50 a month for the support of said minor child, and approved the property settlement agreement whereunder the plaintiff wife surrendered her rights in certain community property then valued at approximately $7,500. The equity suit sought certain provisional relief by enjoining the disposition of the property involved, or the proceeds thereof, pending the action, and such temporary relief was granted. Similar relief was sought pending this appeal, which resulted in the deposit in this court of the sum of $6,500 pending the ultimate outcome of the proceedings. Such sum is still on deposit with the Clerk of this court. In the said equity suit appellant did not attempt to disturb the provisions of the divorce decree granting appellant the divorce, or concerning the custody of the minor child, or the provision that the respondent pay her $50 a month for the support of said child. She did not specifically, in her prayer, ask that the decree be vacated or set aside or modified so far as it ratified, approved and confirmed the property settlement agreement, but prayed simply for the cancellation of said agreement, and that a constructive trust be decreed against the respondent as trustee and in favor of appellant as beneficiary as to one half of the proceeds of an asserted pending sale of the property by respondent. That the decree thus sought would be, to such extent, a modification of the divorce decree approving the settlement agreement appears to be recognized by both parties to the present appeal. Appellant also prayed in the injunction suit for costs and further relief.

Appellant's injunction complaint in the district court alleged in substance (it is twelve pages in length and contains more than twice that many pages in exhibits) that the defendant had treated her with extreme cruelty, had forced her to bring the divorce action and to obtain the decree; that they had been man and wife over eleven years, up to May 16, 1944; that they had acquired the community property through their own efforts; that she had materially contributed thereto through the proceeds of her own employment; that for at least two or three years preceding May 16, 1944 the defendant had decided upon a divorce and the appropriation to himself of the community property and had set out upon a purposed, consistent methodical course of conduct of extreme cruelty calculated to break her spirit, overcome he resistance and compel her to sue for a divorce, and in desperation to waive her community property rights; that he engaged in incessant nagging, quarreling, fault finding, dramatics, simulated weeping, threats, false, fraudulent and misleading declarations as to his ability to postpone action in the divorce proceeding, culminating in the filing by the plaintiff of her divorce complaint on May 5, 1944, and the execution of the property settlement agreement on May 16, 1944, and the trial of the divorce action and the entry of the divorce decree approving the property settlement agreement on May 16, 1944. The alleged fraud and cruelty are enlarged upon and reiterated at length in the complaint, and it is alleged that there was a lack of real consent to the contract on the part of plaintiff, a lack of contractual capacity, a lack of consideration, and an actual prevention of the exercise by the plaintiff of her own will in the divorce action. The complaint contains other allegations in support of the plaintiff's prayer for preliminary or ancillary relief.

Respondent filed a general demurrer to the equity complaint, which was thereafter sustained by the court. Plaintiff elected not to amend, and a judgment in favor of the defendant was entered in the equity suit. Plaintiff submitted a proposed bill of exceptions from which certain papers and pleadings were stricken by the court on motion of the defendant. The plaintiff's notice of appeal states that she appeals from the judgment which was entered September 24, 1946, 'and from the order sustaining the demurrer to plaintiff's complaint' entered September 11, 1946. Ten separate errors are assigned in support of the appeal: (1) The order striking certain papers, briefs, records and files from the proposed bill of exceptions; (2) the sustaining of the general demurrer to the complaint upon the ground that the fraud alleged was intrinsic and not extrinsic or collateral; (3) the sustaining of the demurrer despite the allegations of want of real consent to the contract of May 16, 1944; (4) the sustaining of the demurrer despite the allegations of an 'overreaching' on the part of the defendant; (5) the sustaining of the demurrer despite the allegations of lack of consideration; (6) the sustaining of the demurrer in spite of the allegations as to the unfairness of the contract; (7) the sustaining of the demurrer in spite of the allegations of the circumstances under which the contract was executed between the parties thereto in view of the existing relationship of husband and wife; (8) the sustaining of the demurrer because it was a general demurrer as distinguished from a special demurrer; (9) the sustaining of the demurrer because the consequence thereof is to deprive plaintiff of her property without due process in violation of the federal and state constitutions; and (10) because any statute that might be construed in such manner as to authorize a court to deprive a wife of her property without due process would be unconstitutional and void.

If the tenth specification of error (which was not argued at all in the oral argument) is directed at Rule XLV of the District Court prohibiting the vacating of decrees after six months, this contention was disposed of in Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140 P.2d 953. A determination as to whether the allegations contained in the equity complaint set up an intrinsic fraud on the one hand or an extrinsic or collateral fraud on the other hand, will be determinative of this appeal. During the course of the oral argument counsel for appellant frankly conceded that under the rule in this state the fraud alleged must be extrinsic in order to entitle the plaintiff to the relief sought. This indeed is the well settled rule. Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426; Confer v. Second Judicial District Court, 49 Nev. 18, 234 P. 688, 236 P. 1097, Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061.

Appellant in her oral argument and in her opening and reply briefs, seeks to distinguish these cases from the case at bar, but we are of the opinion that despite the distinctions pointed out, the cases are controlling. Particularly is this so with reference to the Calvert case. It would serve no purpose and would unduly lengthen this opinion to compare the facts in the Calvert case with those in the case at bar. It is sufficient to state that in the Calvert case the allegations of physical and mental cruelty and abuse, threats, importunities. coercion, menace, force, overreaching, etc. are stronger and more forcible than in the instant case. It is true that in the Confer case [49 Nev. 18, 234 P. 689], the attack upon the jurisdiction of the court by reason of an alleged deficiency of the residence requirements, and that the court held, through Mr. Justice Sanders, that the alleged fraud was in respect to 'the very matter' on which the judgment for divorce was rendered. It was there stated further that the allegation of residence stands upon the same footing as any other allegation of fact showing a right to a divorce. It is likewise true that in the Chamblin case the divorce decree was attacked upon the ground that it was rendered on perjured testimony. Mr. Justice Coleman, speaking for the court in that case, said: 'Fraud is extrinsic or collateral within the meaning of the rule when it is one the effect of which prevents a party from having a trial, or from presenting all of his case to the court, or which operates, not upon the matters pertaining to the judgment itself, but to the manner in which it is procured. 15 R.C.L. p. 763; 34 C.J. p. 472, n. 66a.' In Calvert v. Calvert, supra [61 Nev. 168, 122 P.2d 427], the court, speaking through Orr,...