Murchison v. Murchison

• Decision Date: 27 August 1963
• Citation: 219 Cal.App.2d 600,33 Cal.Rptr. 285
• Court: California Court of Appeals Court of Appeals
• Parties: , 12 A.F.T.R.2d 6032, 64-1 USTC P 9158 R. Bruce MURCHISON, Plaintiff and Appellant, v. Ethel A. MURCHISON, Defendant and Respondent. Civ. 26490.

Page 285

33 Cal.Rptr. 285

219 Cal.App.2d 600, 12 A.F.T.R.2d 6032, 64-1 USTC P 9158

R. Bruce MURCHISON, Plaintiff and Appellant, v. Ethel A. MURCHISON, Defendant and Respondent.

Civ. 26490.

District Court of Appeal, Second District, Division 3, California.

Aug. 27, 1963.

As Modified on Denial of Rehearing Sept. 18, 1963.

Murchison, Cumming, Baker & Velpmen and Henry F. Walker, Los Angeles, for plaintiff and appellant.

William P. Mealey, Los Angeles, for defendant and respondent.

FILES, Justice.

This appeal is from an order denying a motion to quash execution and enter satisfaction of judgment in a divorce action. The question is whether the plaintiff, who paid an income tax deficiency after the divorce, was entitled to offset a part of it against the balance due defendant under the divorce judgment.

The record on appeal indicates that plaintiff obtained an interlocutory judgment of divorce against defendant on July 30, 1956. The final judgment was entered a year later. The interlocutory ordered plaintiff to pay defendant $300 per month beginning with July 1956 and continuing for 59 months. The judgment contained separate provisions for child custody and support. The judgment also contained these words: 'The Court finds the property settlement agreement, dated June 26, 1956, between plaintiff and defendant is a fair and equitable distribution of the property of the parties and it is hereby approved.' There was no other mention of property in the judgment. Nothing was said about whether there were debts, or if there were, who was to pay.

In December 1961 defendant filed in the superior court an affidavit stating that plaintiff had paid only $14,100 of the $17,700 which had been ordered paid, leaving a balance of $3,600 due, plus interest. Upon this affidavit a writ of execution was issued. Plaintiff then moved to quash execution and enter satisfaction of judgment. In support of this motion plaintiff filed a declaration showing the following facts which were not controverted and which for the purpose of this appeal are assumed to be true:

After the dissolution of the marriage the joint income tax returns of the parties for the years 1953, 1954, 1955 and 1956 were audited by the Internal Revenue Service with the result that the government claimed more than $20,000 as additional tax due for those years. An additional claim was asserted by the State of California based upon the federal government's audit. Plaintiff employed an attorney who negotiated a settlement with the federal and state governments. In June 1960 plaintiff paid to the Director of Internal Revenue $9,165.69 and to the State Franchise Tax Board $810.25 in full satisfaction of the joint tax liability of plaintiff and defendant. Plaintiff also paid in full the fees of the attorneys whom he had employed to handle the tax matters.

Plaintiff thereupon set off the $3,600 which remained unpaid under the divorce judgment against defendant's share of the tax deficiency which plaintiff had paid.

Plaintiff's declaration also stated that when the parties had received notice of the tax claims, they had agreed that plaintiff would handle the matter for both of them and that defendant would reimburse him for one-half of any amount paid to the state and federal governments and one-half of the attorneys' fees. Defendant filed a counteraffidavit denying that any such agreement had been made. For the purpose of this appeal it is assumed that the trial court believed the affidavit of the prevailing party (defendant). We are bound by the implied finding that there was no agreement to share this burden.

The property settlement agreement, which had been received in evidence at the time of the divorce, was called to the attention of the court hearing the motion. The agreement was an integrated contract which expressed the desire of the parties to settle all rights and claims of each against the other 'which may now exist or which may hereafter arise by reason of the marriage of the parties and their marital status to the date hereof. * * *' The agreement specified a division of property and contained the husband's promise to pay the wife $300 per month for five years. These payments were not designated as 'alimony' or 'support.' The paragraph providing for the cash payments was headed 'Concluding Property Distribution.' ¹

There was in the agreement no mention of debts, nor any promise by either to discharge any existing debts except a mortgage on the home, which the husband agreed to pay.

The agreement contained the following language:

'Each of the parties hereto agrees that neither he or she will not, under any circumstances, ask any court in any proceedings for any allowance, support or maintenance or for further counsel fees or costs, or suit money or for any money or for any decree or order affecting the property rights of the parties hereto other than as provided and set forth in this agreement.'

Notwithstanding the double negative in the quoted language, the parties are agreed that the purpose and effect of the clause is to prohibit further proceedings of the kind mentioned therein.

Preliminarily, it should be noted that there is nothing in the record to indicate (a) that at the time the tax deficiency was asserted either party held any property which had been the common property of the parties during the marriage; (b) that either party was guilty of any fraud or even negligence, in underpaying their income taxes; (c) that the amounts paid by plaintiff to settle the deficiency claims were not paid in good faith to compromise valid claims.

When husband and wife elect to file a joint income tax return they become jointly and severally liable for the entire tax payable upon the aggregate income. (Cal.Rev. & Tax.Code, § 18555; 26 U.S.C. § 6013(d)(3); Furnish v. Commissioner of Internal Revenue (9 Cir.), 262 F.2d 727, 731.)

Under the circumstances shown here plaintiff was compelled by law to make a payment which benefited defendant in that defendant's tax liability was discharged.

Civil Code, section 1432, provides: 'A party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.'

This rule applies even though there be no contract or agreement between the payer and the person benefited. (Powell v. Powell, 48 Cal. 234; Hilton v. Young, 73 Cal. 196, 14 P. 684.) Although in some cases an agreement to make contribution may be implied, the doctrine, as it began in the courts of equity, is founded not upon consent but upon natural justice. The underlying idea is that it is just and equitable for the person benefited to pay his proportionate share. (See Chipman v. Morrill, 20 Cal. 130, 135; Blankenhorn-Hunter-Dulin Co. v. Thayer, 199 Cal. 90, 96, 247 P. 1088, 48 A.L.R. 797; 18 C.J.S. Contribution § 2; 13 Am.Jur., Contribution, § 4.) Civil Code, section 1432, is consistent with the equitable origin of the doctrine in that its application is not limited to cases where consent, express or...