Parke v. Parke

• Citation: 242 P.2d 860,72 Idaho 435
• Decision Date: 03 April 1952
• Docket Number: No. 7809,7809
• Parties: PARKE v. PARKE et al.
• Court: United States State Supreme Court of Idaho

Page 860

242 P.2d 860

72 Idaho 435

PARKE v. PARKE et al.

No. 7809.

Supreme Court of Idaho.

April 3, 1952.

Walter H. Anderson Pocatello, for appellant.

Dean Kloepfer, Burley, for respondents.

PORTER, Justice

Appellant is the former wife of respondent, Gilbert I. Parke. Respondents, Gilbert I. Parke and Gladys Wells Parke, are presently husband and wife. Gilbert I. Parke will be herein referred to as respondent. By this action, appellant seeks to have declared null and void the property settlement agreement entered into during the pendency of appellant's divorce action against respondent, and to have vacated that part of the decree of divorce approving such agreement. Appellant also prays for a division of the community property, for an injunction restraining respondents from disposing of same, and for permanent alimony.

Respondents filed a demurrer both general and special to appellant's amended complaint. The court sustained both the general and special demurrers. Appellant having failed to amend her amended complaint within the time allowed by the court, a judgment of dismissal was entered. From such judgment appellant appeals to this court.

By her specifications of error, appellant alleges the court erred in sustaining the demurrer; in holding the amended complaint did not state facts sufficient to constitute a cause of action; and in dismissing such complaint.

The amended complaint is long and, to a degree, repetitious. It contains immaterial and evidentiary matter. We will not set it out at length but will summarize the salient facts as alleged therein.

Respondent and appellant were married in the year 1925 and were husband and wife until the entry of the decree of divorce in question. During their marriage the parties acquired a residence in Burley reasonably worth, at the time of the divorce, the sum of $12,000. In addition, through their joint efforts, they developed a business generally known as Gib's Barbecue located upon the same land as the residence. Such business, with the building and the land it occupies, the equipment therein and the good will thereof was reasonably worth, at the time of the divorce, the sum of $20,000. They also acquired other community property of the reasonable value of $14,000, consisting of one automobile and of money in the bank and in the U. S. Postal Savings.

In the year 1943 the health of appellant became impaired by overwork. In 1944, respondent took a room in their home apart from appellant and they no longer lived together as husband and wife. Thereafter, respondent began insinuating and intimating he wanted the marriage dissolved. His treatment of appellant is alleged in Paragraph X of the amended complaint as follows: 'That for the past three or four years, the defendant pursued a cruel course of conduct that was unbearable to the plaintiff, and instilled in the plaintiff the deep-seated fear of the defendant and what he would do; in that during all of said time, said defendant constantly, daily, and even oftener told the plaintiff and accused her of being crazy and told their daughter if she (the daughter) would do what she should, that she (the daughter) would sign papers and put the plaintiff where she belonged; that by reason of this course of conduct, the plaintiff lived in constant fear that she would incur the displeasure of the defendant and he would have her committed to an insane asylum; that such fear became an obsession and was constantly on her mind and haunted her both day and night to such an extent that she was afraid to do anything to incur the defendant's ill will or displeasure and that she would be committed to an asylum.'

The amended complaint also alleges serious physical violence was committed on appellant by respondent and sets out other acts of cruelty on his part.

The amended complaint further alleges that in the year 1948, appellant, moved by the veiled threats of her husband, instituted a suit for divorce in Cassia County. That on October 29, 1948, while such suit was pending, the parties entered into a property settlement agreement dividing their community property, by which agreement appellant received $10,000, in cash and her household furniture, and her husband received the remainder of the community property. That appellant did not enter voluntarily into said property settlement agreement. That at the time said agreement was signed appellant was in ill health and in a weakened condition and had undergone a major operation. That appellant was coerced into signing the agreement by her fear of incurring the displeasure of her husband or of doing anything contrary to his wishes and that she was afraid if she did not sign the agreement he would have her committed to an asylum. That there was no meeting of the minds in the signing of the agreement and that appellant signed the same under duress brought about by her husband's treatment. That her counsel advised her to sign said property settlement agreement saying, 'that a trial would be a severe strain upon you and that I might find myself in the middle of a lawsuit without a client or any witnesses due to your inability to stand trial.' That said agreement was dictated by respondent and was inequitable and unjust and deprived appellant of her just share of the community property.

The amended complaint further alleges said property settlement was and is fraudulent in that respondent did not disclose and list all of the community property; and that respondent concealed money and liquid assets which he had secreted from appellant.

The agreement, attached to the amended complaint as an exhibit, specifically states that it contains a full, true and correct statement of all property that has been acquired by the parties since their marriage and that neither party has any knowledge of any community property not listed.

The agreement also recites that in the event plaintiff is awarded a decree of divorce, 'then and in such event, the court shall divide the community property that is now owned by the parties hereto, in accordance with the terms and conditions of this contract, without the submission to the court of any proof that the same is community property, or of the value of the same, excepting as is stated in this contract, and this contract shall be accepted as a fair, equitable and just division between the parties hereto of their property and property rights.'

On January 22, 1949, a judgment by default was entered granting appellant a divorce, approving the agreement dividing the community property and awarding the property in accordance with the terms of such agreement.

It is also alleged in the amended complaint that respondents are now living in the mentioned residence and are in possession of and using and enjoying the income and profits from the barbecue business.

The general demurrer testing the sufficiency of the amended complaint admits the truth of all the foregoing facts, well pleaded. Boise Payette Lbr. Co. v. Idaho Gold Dredging Corp., 56 Idaho 660, 58 P.2d 786.

Appellant relies upon coercion and fraud as grounds for setting aside the property settlement agreement and that part of the divorce decree approving same. 'Duress as a ground for setting aside a default judgment of divorce has been frequently bracketed by the courts with fraud. Generally speaking, the courts will, as in the case of fraud * * * exercise their power and set aside a judgment obtained by duress.' Annotation 157 A.L.R. 80, par. d.

Duress of a wife by a husband is generally recognized as a sufficient ground for vacating a divorce decree for or against the wife. 27 C.J.S., Divorce § 169, P. 812; Burton v. Burton, 176 Okl. 494, 56 P.2d 385, 104...