Robinson v. Robinson
| Decision Date | 25 November 1949 |
| Citation | 211 P.2d 587,94 Cal.App.2d 802 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ROBINSON v. ROBINSON. Civ. 3879. |
Harry Ashton, Los Angeles, for appellant.
Marjorie Mize, Santa Ana, for respondent.
Plaintiff and defendant entered into a property settlement on January 10, 1947, the stated purpose of which was to effect a complete and final settlement and adjustment of all property rights and interest of every kind and nature between the parties and to provide for the custody, care, support, maintenance and education of their two minor children, and for the support of plaintiff. Provisions were made for the transfer and conveyance of personal and real property to each party and the husband agreed to pay the sum of $100.00 per month for each of the two children, together with the sum of $100.00 per month to plaintiff for a period of ten years. It was agreed that the provisions of the settlement agreement concerning the division of the property were accepted by each party as a complete settlement of all their property rights and a waiver of any and all claims by one against the other in respect to community or other property, except as set forth in the agreement.
The controversy before us concerns the provisions of paragraph three of the agreement, which is as follows:
'Third: The husband agrees that he will build or cause to be built on that certain real property standing in the names of the parties hereto as joint tenants, situated in the City of Laguna Beach, County of Orange, State of California, described as follows:
'Lot 116 of Tract 585 as per Map thereof recorded in Book 26 at Pages 25 to 27 of Miscellaneous Maps, Records of said Orange County, a house for the use of the wife and said minor children, costing approximately $17,000.00, according to plans agreed upon by the parties hereto, to be financed as follows:
'(1) An loan of $10,000.00 to be evidenced by a promissory note secured by a Deed of Trust covering said real property, to be executed by both parties, said note to be paid in monthly installments of $85.00, principal and interest; and
'(2) The balance of said construction cost, amounting to approxmiately $7,000.00, to be furnished by the husband; the husband agreeing to pay taxes, sewer bond assessments, insurance, upkeep and repairs on said property; and the wife agreeing to make said monthly payments of $85.00 per month due on account of said promissory note.'
On June 16, 1947, an interlocutory judgment of divorce was granted to the plaintiff in which the property settlement agreement was approved and each of the parties thereto ordered to abide by all the provisions thereof. On April 30, 1948, an order to show cause was heard in the Superior Court of Orange County before the Hon. C. C. McDonald, judge assigned to said court. On the hearing, the court found that pursuant to the terms of paragraph three of the agreement, a contractor was employed and construction of the house was commenced; that said construction was not completed by the parties because of the failure of the contractor to meet the conditions of the building contract and because of said contractor's death in September of 1947; that because of the impossibility of completing said house on the terms set out in said agreement, the parties modified said agreement by joining in a subsequent agreement for the sale of the property; that a sale was had and the sum of $5,942.87 was deposited and held in escrow subject to the order of the parties. The court ordered and decreed that the money be divided $5,046.44 to plaintiff and $896.43 to defendant and that upon payment of said sum to plaintiff, defendant be released from all obligation to build a house for plaintiff and that he be released from any and all obligations under said property settlement agreement regarding any of the property belonging to the parties.
The provisions of the property settlement and interlocutory decree relative to the amounts to be paid for the support and maintenance of plaintiff and the minor children were not changed.
On July 9, 1948, the defendant filed a motion in said court to vacate the order and judgment made on the hearing on the order to show cause. The motion was based on the ground that the interlocutory decree determined the property rights of the parties and that the court was without jurisdiction to make any order modifying or vacating said interlocutory decree respecting the property rights of the parties. The motion was heard in the same court before Hon. Franklin G. West, who granted the motion in arrest of and to vacate the judgment. From the order vacating the judgment, plaintiff appeals, contending that the court had no jurisdiction to modify the terms of the property settlement agreement and that the motion to vacate the judgment should not have been granted.
It is not here contended that the property settlement agreement was tainted by fraud or compulsion or...
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