Taliaferro v. Davis

• Decision Date: 21 May 1963
• Citation: 31 Cal.Rptr. 164,216 Cal.App.2d 398
• Parties: E. A. TALIAFERRO, Cross-Complainant and Appellant, v. Dorothy DAVIS, also known as Dorothy Taliaferro, Cross-Defendant and Respondent (two cases). Civ. 19661, 19662.
• Court: California Court of Appeals

Page 164

31 Cal.Rptr. 164

216 Cal.App.2d 398

E. A. TALIAFERRO, Cross-Complainant and Appellant, v. Dorothy DAVIS, also known as Dorothy Taliaferro, Cross-Defendant and Respondent (two cases).

Civ. 19661, 19662.

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

May 21, 1963.

Eugene A. Taliaferro, in pro. per.

Frisbie & Hoogs, Berkeley, for respondent.

MOLINARI, Justice.

These are appeals from judgments in two separate actions involving the same parties and identical issues. They are particularly concerned with the cross-complaint filed in each of said actions by appellant, Eugene A. Taliaferro, against his former wife, respondent, Dorothy Davis, also known as Dorothy Taliaferro. This is another of a long list of appeals arising from the 1944 divorce of the parties. As stated by this court in Taliaferro v. Taliaferro, 200 Cal.App.2d 190, 19 Cal.Rptr. 220: 'The interests of justice and the equities of the case require us to take judicial notice of related prior proceedings.' ¹ (P. 191, 19 Cal.Rptr. p. 221; citing Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 772, 308 P.2d 872, and listing each of said proceedings in the footnote; see also Taliaferro v. Taliaferro, 178 Cal.App.2d 140, 142, 2 Cal.Rptr. 716; and Flores v. Arroyo, 56 Cal.2d 492, 496, 15 Cal.Rptr. 87, 364 P.2d 263.)

The previous appeals disclose the following background: On January 3, 1944, respondent obtained an interlocutory decree of divorce from appellant pursuant to which a final decree was entered on January 10, 1945. The said parties had entered into a property settlement agreement, dated December 1, 1943. On September 19, 1949, there was entered, in the superior court having jurisdiction over said divorce action, an order that said agreement was not merged in said interlocutory and final decrees of divorce and that said court was without jurisdiction to make an order modifying the terms of said agreement. No appeal was taken from said order. In a separate action commenced on September 29, 1949, respondent recovered arrearages provided for in said agreement, ² the trial court finding that the agreement was unmodifiable on the basis that it was made for the purpose of providing a division of property, rather than alimony and maintenance. These findings were found to be amply supported, and the judgment was affirmed in Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 270 P.2d 1036. ³ Additional amounts due under the agreement were recovered by respondent in a subsequent action commenced by her against appellant. Judgment in her favor was affirmed on appeal. (Taliaferro v. Taliaferro, 154 Cal.App.2d 495, 316 P.2d 393.) Thereafter, in Taliaferro v. Taliaferro, 171 Cal.App.2d 1, 339 P.2d 594, this court was called upon to review the action of the superior court in refusing to enter a default judgment for appellant pursuant to a complaint which, among other things, contained substantially the same allegations as those made in count one of the two complaints now before us. In that action appellant sought to vacate the "court's action" in approving the aforesaid property settlement agreement on the ground that said agreement was against public policy in that he was induced to sign said agreement "to persuade" respondent to proceed with a divorce action she filed on September 7, 1943, in Contra Costa County, and "to secure a divorce decree without contest." (P. 4, 339 P.2d p. 595.) Appellant also alleged in his complaint in said action that he was induced to sign the agreement by fraud in that respondent concealed the fact that long prior to the settlement agreement she had obtained, on July 7, 1932, an interlocutory decree of divorce in the Superior Court of San Francisco which did not provide for alimony and support; and asserted, further, that the "existence" of the earlier decree was "concealed from" him until December 1954, when he learned of the 1932 decree. (p. 4, 339 P.2d p. 595.) The reviewing court agreed with the lower court that the counts containing these allegations did not state a cause of action. The holding was predicated upon the grounds that the complaint disclosed that appellant had information as to the filing of the 1932 action, but did not follow through on said action, his own complaint not alleging any lack of service of himself as to that action; that the fact that respondent may have sued a second time to determine a matter already barred by res judicata does not constitute a fraud on the court, res judicata being a defense that was waived by appellant when he did not raise it; and that the property settlement agreement was not violative of public policy as being "promotive of divorce" (p. 7, 339 P.2d p. 597); and that if it were against public policy appellant could not attack it because he was in pari delicto.

Appellant then brought two separate actions respectively challenging the validity and the effect of the aforesaid judgments for arrearages. A demurrer to each of said complaints was sustained without leave to amend. The judgments entered upon said demurrers were affirmed on appeal. (Taliaferro v. Taliaferro, supra, 178 Cal.App.2d 140, 2 Cal.Rptr. 716; Taliaferro v. Taliaferro, 178 Cal.App.2d 146, 2 Cal.Rptr. 719.) ⁴ Appellant then brought two actions for declaratory relief for adjudication of his rights under said agreement. A motion for summary judgment therein was denied appellant on the basis of res judicata, and appeals from said adverse judgments were affirmed. (Taliaferro v. Taliaferro, 179 Cal.App.2d 787, 4 Cal.Rptr. 689.) A judgment denying appellant's motion to modify the final decree of divorce was also affirmed in Taliaferro v. Taliaferro, 180 Cal.App.2d 44, 4 Cal.Rptr. 693, and a penalty was assessed against him for taking a frivolous appeal. Appellant also brought an action to set aside the said property settlement agreement and to have declared void an order which set aside an earlier order modifying the agreement. He appealed from an adverse judgment predicated on res judicata and the judgment was affirmed in Taliaferro v. Taliaferro, 180 Cal.App.2d 159, 4 Cal.Rptr. 696.

The following background facts also appear: During the marriage appellant owned and operated an automobile wrecking, repairing and new and used parts business known as Davis Auto Exchange. This business and a number of parcels of real estate, some occupied by the business and some not, were agreed in said property settlement agreement to be community property. It was also provided in said agreement that said business was to remain under the management and control of appellant and that he was to be entitled to all the profits from the operation thereof. The agreement provided that the value of said business and the premises upon which it was located was $20,000 and that in the event of the sale of said business respondent was to receive $10,000. The agreement also provided that appellant was to receive the rentals from all the real property, and that in the event of the sale of any of the real estate each of the parties was to receive half of the proceeds of the sale of each piece of realty. ⁵ It appears that respondent had execution issue on the judgments obtained by her for the arrearages aforementioned and that she caused the writ to be levied on the Davis Auto Exchange and upon certain other parcels of said real property. It also appears that respondent bought in the property levied upon at the execution sale and thereafter notified the tenants to pay rent to her. Thereafter, and on October 21, 1959, appellant filed a motion in the divorce action seeking the following: (a) an injunction against alleged interference by respondent with appellant's ownership and management of property covered by the agreement; (b) an order modifying the final decree of divorce and the property settlement agreement because of 'substantial breaches' by respondent; (c) $20,000 actual damages against respondent for the above interference and $50,000 punitive damages 'for abuse of process for the aforesaid breaches'; (d) restitution of rentals allegedly collected by respondent; and (e) a decree that there has been a failure of consideration in the agreement. At the hearing of the motion, oral and documentary evidence was received. The court thereupon denied the motion 'upon the grounds that the matters attempted to be raised are res judicata, and the motion is also denied upon the merits.' This order was affirmed on appeal. (Taliaferro v. Taliaferro, supra, 200 Cal.App.2d 190, 19 Cal.Rptr. 220.) It appears further that appellant moved to vacate the execution sale pursuant to the writ of execution issued upon the judgment obtained against him by respondent. ⁶ The motion was denied by the trial court, appellant thereupon appealed, and the order appealed from was affirmed. (Taliaferro v. Taliaferro, 203 Cal.App.2d 649, 21 Cal.Rptr. 868.)

With this background we approach the consideration of the present cases. Each involves an interpleader action by tenants of the property levied upon seeking a determination as to whether they should pay rent to respondent or to appellant. We are not here concerned with said interpleader actions, but with the cross-complaints filed therein by appellant against respondent.

The cross-complaint in action No. 78069 (Contra Costa Superior Court) is in three counts. The first count sets out the 1943 property settlement agreement between the parties and alleges that pursuant to a writ of execution respondent caused the Davis Auto Exchange property to be sold at public auction; that respondent bought the property levied upon at the auction; that as a result of said sale the consideration for the said property settlement agreement was destroyed; and that the said agreement was entered into in contemplation of divorce and therefore was against public policy. The second count alleges that respondent served notices upon the tenants of the Davis Auto Exchange property to thereafter pay the rentals...