Rose v. Rose

• Decision Date: 25 November 1959
• Citation: 346 P.2d 460,175 Cal.App.2d 585
• Parties: Iva Lee ROSE, Plaintiff, Cross-Defendant and Appellant, v. Melville J. ROSE, Defendant, Cross-Complaint and Respondent. Civ. 18560.
• Court: California Court of Appeals Court of Appeals

Page 460

346 P.2d 460

175 Cal.App.2d 585

Iva Lee ROSE, Plaintiff, Cross-Defendant and Appellant, v. Melville J. ROSE, Defendant, Cross-Complaint and Respondent.

Civ. 18560.

District Court of Appeal, First, District, Division 1, California.

Nov. 25, 1959.

Rehearing Denied Dec. 23, 1959.

Hearing Denied Jan. 20, 1960.

Otis Babcock, Santa Ana, for appellant.

Stark & Champlin, Harry Gross, John F. Wells, Franklin C. Stark, Oakland, for respondent.

BRAY, Presiding Justice.

Plaintiff and cross-defendant Iva Lee Rose appeals from those portions of a judgment granting her a decree of divorce relating to the approval of a property settlement agreement and denying her support, and the award to her of only $50 attorney's fees.

Question Presented.

Sufficiency of evidence.

Record.

In her complaint, filed in 1957, plaintiff sought a divorce on grounds of extreme cruelty, alleged the existence of community property believed to be valued in excess of $50,000, and asked that it be awarded to her. Defendant cross-complained for a divorce on cruelty grounds and set up a property settlement agreement executed in 1948 as dispositive of all community property rights. Plaintiff answered, alleging several defenses. The court found against these defenses (they will hereafter be discussed) and held that by reason of the agreement, which it approved, there was no community property, and denied plaintiff's prayer for support. ¹Property Settlement Agreement.

Plaintiff attacked the agreement on several grounds, contending that the agreement was not fair and equitable, that the husband concealed community assets at the time of making the agreement, that thereafter there was a reconciliation of the parties, and an intention to abrogate the agreement, and that the consideration for the agreement failed. Plaintiff devotes herself mainly to rearguing the evidence presented to the trial court and the credibility of the witnesses. On the issues raised there was at best a sharp conflict in the evidence, and under the well-known rule this court is bound by the trial court's resolving of that conflict. The evidence consists mainly of the testimony of the parties, defendant's present accountant and a former bookkeeper, and the attorney who represented plaintiff in the negotiations for the agreement. Additionally a host of records of defendant's finances were introduced.

Married in 1930, the parties separated about October 15, 1947. Plaintiff testified that difficulties attibutable to defendant arose in the early 1940's but the precipitating cause of the separation appeared to be plaintiff's insisting on adopting a baby, Susan, to which action defendant objected. The couple were childless. Plaintiff had an opportunity to obtain Susan for adoption. When she brought the child into the house, defendant left. Since that time the parties have never lived together as husband and wife. In November, 1947, plaintiff filed for divorce. In December, defendant stipulated to an order for fees and support pendente lite. Negotiations between the parties and their attorneys followed culminating in the agreement of September 10, 1948.

This agreement provided that defendant pay plaintiff $8,000 (payable $3,000 at once $5,000 in 42 months) and 42 monthly payments of $150 each. As security defendant was to assign $5,000 of life insurance to plaintiff and to pay the premiums thereon. Plaintiff received the household furniture and effects. She waived all right to support and attorney's fees. Further acquisitions by the parties were to constitute separate property of the one acquiring such property. Defendant testified that he fully performed in relation to the insurance and the $150 monthly payments, that plaintiff accepted an automobile and $1,900 in bonds in lieu of the $3,000 payment, and that the $5,000 was by agreement paid in installments. Plaintiff admitted receiving the substituted items but denied any oral agreements.

After the divorce action was filed the attorneys for both parties informed plaintiff that the adoption would probably not be approved if she went through with the divorce. After the property settlement agreement was executed, defendant joined in the adoption petition, and the divorce action was dismissed.

Much of the trial was taken up with an examination of defendant's financial business both before and after the execution of the agreement, including the details of defendant's finances since its execution. The latter were important only in determining whether defendant at the time of the execution of the agreement had fully disclosed his assets. The evidence showed that defendant then did fully disclose his financial condition, and that his present financial condition is based upon income from and sales of businesses financed principally by an inheritance from his sister's estate and loans made to him. A plaintiff's witness testified to seeing defendant either buying or selling bonds at a bank's bond window. The testimony was rahter indefinite. At most plaintiff's evidence created merely a conflict. The burden of proving that fairness of a property settlement agreement, including a full and fair disclosure of the community assets, is on the husband. Matassa v. Matassa, 1948, 87 Cal.App.2d 206, 196 P.2d 599. Defendant met this burden. The negotiations for the agreement extended over a considerable period of time, and both parties had the independent advice of counsel during all that time. As said in the Matassa case, supra, 87 Cal.App.2d at page 214, 196 P.2d at page 603, quoting from Adams v. Adams, 29 Cal.2d 621, 624, 177 P.2d 265: "Property settlement agreements occupy a favored position in the law of this state and are sanctioned by the Civil Code. [Citations.] Such agreements are usually made with the advice of counsel after careful negotiations, and the courts, in accord with legislative sanction, prefer agreement rather than litigation. [Citation.] When the parties have finally agreed upon the division of their property, the courts are loath to disturb their agreement except for equitable considerations. A property settlement agreement, therefore, that is not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court. [Citations.]"

During all the negotiations and ever since the parties have lived separate and apart from one another and dealt at arm's length. The first divorce action was dismissed not for a reconciliation but so the child could be adopted by p...