McIntosh v. McIntosh

• Decision Date: 08 November 1962
• Citation: 26 Cal.Rptr. 26,209 Cal.App.2d 371
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth Thalea McINTOSH, Plaintiff and Respondent, v. Maxie Raymond McINTOSH, Defendant and Appellant. Civ. 6855.

Page 26

26 Cal.Rptr. 26

209 Cal.App.2d 371

Elizabeth Thalea McINTOSH, Plaintiff and Respondent, v. Maxie Raymond McINTOSH, Defendant and Appellant.

Civ. 6855.

District Court of Appeal, Fourth District, California.

Nov. 8, 1962.

William H. Neblett and E. W. Miller, Los Angeles, for appellant.

Lucas, Pino & Lucas, by Malcolm M. Lucas, Long Beach, for respondent.

SHEPARD, Justice.

This is an appeal from a judgment awarding attorney's fees and costs in regard to enforcement of a divorce decree.

FACTS

By a decree of divorce entered November 24, 1958, defendant was ordered to pay to plaintiff $15 per week for support of each of two minor children and $125 per month for support of plaintiff. On October 21, 1960, defendant was found guilty of contempt for willful failure to obey said order. Defendant petitioned this court for a writ of certiorari and stay of execution which petition was resisted by attorneys employed by plaintiff for that purpose and which petition was denied November 23, 1960. A similar petition was filed with the Supreme Court December 5, 1960, was likewise resisted by attorneys employed by plaintiff for that purpose and was denied.

Thereafter plaintiff's motion for attorney fees and costs in resisting said petitions to this court and to the Supreme Court was duly heard and on April 5, 1961, judgment was rendered ordering defendant to pay $1,000 attorney fees and $232.25 costs.

During the trial, sharply conflicting testimony was had regarding whether plaintiff had written and signed an alleged waiver of alimony voluntarily or involuntarily.

It appears from the record that plaintiff, about November 24, 1959, gave birth to an illegitimate child by a man named Glessner. On December 2, 1959, plaintiff wrote, signed and mailed to defendant a waiver of further alimony and a promise that when the family home (which had been awarded her by the divorce decree) was sold, she would divide the proceeds with defendant. The principal controversy between the parties involves the question of validity of said waiver. Defendant's testimony, if believed, would support the conclusion that the waiver was voluntary and for a consideration. However, plaintiff testified that on November 13, 1959, defendant beat plaintiff severely, broke part of the furniture, and threatened to kill her; that thereafter defendant made further and repeated threats to kill her, that he would burn her house down, bring her into court on a charge of adultery, and take her son and daughter away from her; that she was afraid then that if she did not send defendant the written waiver defendant would kill or injure her; that immediately prior to her writing of the waiver, defendant telephoned her and dictated its contents; that when she wrote the waiver she was worried sick and didn't know what she was doing. From the foregoing we are satisfied that the trial court was justified in finding that plaintiff was coerced into writing the waiver by fear of personal injury or death at the hands of defendant; that said fear was induced by the beating of November 13, 1959, coupled with the subsequent threats of defendant; that the waiver was not the voluntary act of plaintiff and was invalid. (Civ.Code Sec. 1567.) As was said in Lewis v. Fahn, 113 Cal.App.2d 95, 99-100, 247 P.2d 831, 834, quoting from 17 C.J.S. Contracts § 175, p. 533,

'Under the modern doctrine there is no standard of courage or firmness with which the victim of duress must comply at the risk of being without remedy; the question is merely whether the pressure applied did in fact so far affect the individual concerned as...