Purdy v. Purdy

• Decision Date: 10 January 1956
• Citation: 291 P.2d 1005,138 Cal. App. 2d 402
• Court: California Court of Appeals
• Parties: Pearl PURDY, Plaintiff and Respondent, v. Arthur W. PURDY, Defendant and Appellant. Civ. 5250.

Page 1005

291 P.2d 1005

138 Cal.App.2d 402

Pearl PURDY, Plaintiff and Respondent, v.Arthur W. PURDY, Defendant and Appellant.

Civ. 5250.

District Court of Appeal, Fourth District, California.

Jan. 10, 1956.

Blodget & Blodget and John D. Cochran, Santa Ana, for appellant.

Launer, Chaffee & Launer, Fullerton, for respondent.

MUSSELL, Justice.

Plaintiff filed her amended complaint in this action for divorce on July 26, 1954.She alleged extreme cruelty and sought a dissolution of the marriage and award of community property, support and maintenance, costs and attorney's fees.The trial court rendered judgment for plaintiff and awarded her support and maintenance in the sum of $150 per month and allowed her attorneys' fees in the sum of $1,375, plus costs, amounting to $47.15.Defendant appeals from that portion of the judgment awarding the attorneys' fees and permanent support and contends that the court erred in interpreting a property settlement agreement executed by the parties.

Plaintiff and defendant were married on July 7, 1943.On January 17, 1947, they separated and a divorce action was filed February 7, 1947.On March 14, 1947, an agreement, denominated property settlement agreement, was executed, determining the property rights of the parties and providing that Pearl Purdy(second party)'[w]aives all right to support, maintenance or attorneys' fees against first party.'An interlocutory decree of divorce was rendered in favor of Pearl Purdy on March 18, 1947, and in July of that year the parties became reconciled.On August 23, 1948, the interlocutory decree was vacated and the then pending divorce action was dismissed.On or about March 10, 1949, the parties again separated and on that date they entered into a new property settlement agreement similar in most respects to the previous agreement executed on March 14, 1947.By the terms of this new agreement Mrs. Purdy received a sum of money and certain items of furniture and waived all rights and claims to support, maintenance or attorneys' fees as against the defendant.In August 1951, Mrs. Purdy filed suit for separate maintenance and on October 28, 1952, this action was dismissed.In March, 1952, the parties again became reconciled, continued to live together until their final separation in June, 1954, and this action followed.

The trial court found that 'There is no community property of said marriage and all property standing in the name of defendant is the sole and separate property of defendant and all property standing in the name of plaintiff is the sole and separate property of plaintiff.There is no income from any community property of the parties'; that the parties entered into a property settlement agreement on March 14, 1947, wherein and whereby the property rights of the parties were settled as between themselves; that on March 10, 1949, the parties entered into a new property settlement agreement in which plaintiff received the sum of $9,245 and certain items of furniture and that plaintiff therein waived all rights and claims to support, maintenance or attorneys' fees as against the defendant; that the property settlement agreement of March 14, 1947, and of March 10, 1949, were fair and equitable; and the agreement of March 10, 1949, is still valid and existing except as to its executory provisions, including the provisions with respect to rights of inheritance, support and maintenance of plaintiff and attorneys' fees.The court concluded that the defendant should be ordered to pay plaintiff support and maintenance and should be required to pay plaintiff's attorneys' fees in the sum stated.

Where, as here, there is no reporter's transcript and the appeal is on the judgment roll alone, it will be presumed that there was evidence received by the trial court to support the findings made on the subject matter.Ferl v. Ferl, 135 Cal.App.2d 458, 287 P.2d 514.We are here limited to a determination of the questions as to whether the complaint states a cause of action; whether the findings are within the issues; whether the judgment is supported by the findings and whether reversible error appears upon the face of the record.Estate of Larson, 92 Cal.App.2d 267, 268, 206 P.2d 852.See alsoWhite v. Jones, 136 Cal.App.2d 567, 288 P.2d 913.It is also the rule that the findings are to receive such a construction as will uphold rather than defeat the judgment, and...