Taliaferro v. Taliaferro

• Citation: 19 Cal.Rptr. 220,200 Cal.App.2d 190
• Court: California Court of Appeals
• Decision Date: 13 February 1962
• Parties: Dorothy D. TALIAFERRO, Plaintiff and Respondent, v. Eugene A. TALIAFERRO, Defendant and Appellant. Civ. 19299.

Page 220

19 Cal.Rptr. 220

200 Cal.App.2d 190

Dorothy D. TALIAFERRO, Plaintiff and Respondent, v. Eugene A. TALIAFERRO, Defendant and Appellant.

Civ. 19299.

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

Feb. 13, 1962.

Rehearing Denied March 5, 1962.

Hearing Denied April 11, 1962.

Eugene A. Taliaferro, San Pablo, in pro. per.

Frisbie & Hoogs, W. H. Hoogs, Berkeley, for respondent.

SULLIVAN, Justice.

Defendant Eugene Taliaferro appeals from an order denying his motion to modify a divorce decree and property settlement and directing the payment of $75 attorney fees to respondent's counsel. He thus adds another page to a tedious chronicle of postmarital dispute. The interests of justice and the equities of the case require us to take judicial notice of related prior proceedings. ¹ (Watson v. Los Altos School District, 149 Cal.App.2d 768, 772, 308 P.2d 872.)

The interlocutory decree of divorce in this action was entered on January 3, 1944; the final decree on January 10, 1945. The property settlement agreement of the parties, dated December 1, 1943, was approved by the court and made a part of each of the above decrees. On June 27, 1949, an order modifying the final decree of divorce was entered, the effect of said order being to strike from the property settlement agreement paragraph Seventh thereof which provided for a monthly payment to respondent for the support of herself and her two minor children. This order was in turn vacated by the court's order of September 16, 1949, which determined 'that the Property Settlement Agreement entered into between the parties * * * was not merged in the interlocutory and final decrees of divorce * * * and that this Court therefore is without jurisdiction to make an order modifying the terms of said property settlement agreement.' The last mentioned order was entered on September 19, 1949. No appeal was taken from it.

In a separate action commenced on September 29, 1949, this respondent recovered arrearages due under the aforementioned paragraph Seventh of the agreement, the trial court finding that the agreement having been made for the purpose of providing a division of property rather than alimony and maintenance, was unmodifiable. In Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 270 P.2d 1036, the above findings were found to be amply supported and the judgment affirmed. 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.)

Appellant now concedes the unmodifiable character of the property settlement agreement. His closing brief before us in this appeal states: 'The appellant no longer contends that the court has power to modify the divorce decree, or the property settlement.'

With this background, we take up appellant's motion which is the subject of the instant controversy. It was filed in the divorce action on October 21, 1959. It is entitled a 'MOTION TO MODIFY DIVORCE DECREE AND THE PROPERTY SETTLEMENT AGREEMENT INCORPORATED THEREIN AND FOR AN ORDER TO SHOW CAUSE WHY A PERMANENT RESTRAINING ORDER SHOULD NOT BE ISSUED AGAINST THE ABOVE NAMED PLAINTIFF.' It is supported by an affidavit of appellant to which a copy of the property settlement agreement dated December 1, 1943, is attached as an exhibit.

Appellant's motion sought 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 of 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, and 'that the final judgment herein, wherein the aforementioned agreement was incorporated, be modified so that the Defendant herein is no longer under any legal obligation to make payments under the terms' of the agreement and decree.

At the hearing of the motion, oral and documentary evidence was received. The court, however, refused to hear any testimony in support of the statement made in appellant's affidavit that respondent in violation of the provisions of the agreement had adderted an interest in many pieces of property acquired by appellant since the signing of the agreement. The court also refused to hear supporting testimony in reference to an allegation of the affidavit that respondent had refused to sign necessary documents for appellant to manage certain properties. Evidence was received on the alleged interference with appellant's management of property and the collection of rentals by the respondent. In essence, this pertained to the issuance and levy of a writ of execution in a separate action in which respondent here (and plaintiff there) had recovered a judgment against appellant (defendant there). The court thereupon denied appellant's motion 'upon the grounds that the matters attempted to be raised are res judicata, and the motion is also denied upon the merits.'

Appellant argues that the motion was erroneously denied for a number of reasons, reducible to the following: (1) The court had the power and should have enjoined respondent's levy of a writ of execution on certain property known as the Davis Auto Exchange; (2) the Court should have rescinded the property settlement agreement because of respondent's breaches thereof, despite the fact that through error, appellant sought modification of the agreement and the decree; (3) it was error for the court to refuse to hear certain testimony and to deny the motion on the basis of res judicata; and (4) the court should have awarded damages to appellant. None of these contentions have any merit.

At the basis of appellant's first contention is the charge made in his affidavit in support of the motion that respondent 'has interfered and prevented the Defendant from operating the Davis Auto Exchange and collecting rentals from properties covered by the Agreement of December 1, 1943.' Considerable colloquy between appellant and the court and some testimony offered by appellant give us the following background facts: Respondent, presumably to recover arrearages due under the property settlement agreement, commenced an independent action against appellant on the agreement, and recovered judgment. Appellant appealed from the judgment bur apparently failed to secure a stay of execution either by the usual written undertaking or by a writ of supersedeas. Respondent thereupon had execution issue, and caused the writ to be levied on the Davis Auto Exchange. Respondent bought in the property at the execution sale and thereafter notified the tenants to pay rent to her. Appellant claims here that the respondent bought in the property at a grossly unfair price, but otherwise charges no irregularity in the issuance of the writ of execution, its levy or the execution sale.

Upon the foregoing factual background, appellant makes the rather novel argument that the court below, acting in the divorce action, could and should have enjoined the proceedings in the independent action. The argument appears even more unusual when it is noted that the execution, levy and sale have all taken place. Appellant furnishes no authorities holding that the court in the divorce action would have such power. What authorities he does cite, speak generally of familiar principles that the powers of equity are extensive, broad and flexible and that their purpose is to do right and justice. Since none of appellant's cases are in point, we do not feel they require our detailed discussion. We are satisfied that appellant could have invoked relief in the other action. Such action is not before us and we feel no duty to outline for appellant the procedure he might have followed therein. It is clear that appellant should have addressed himself to the court which rendered the judgment against him, not to the court which granted the divorce.

We next consider appellant's contention that the court below should have rescinded the property settlement agreement. Previous litigation between appellant and respondent has determined that their agreement is an integrated unmodifiable property settlement agreement. (Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 270 P.2d 1036.) In the last cited case involving respondent's recovery of arrearages under the agreement, the court referred to the above-mentioned order of the Superior Court of Contra Costa County entered in the divorce proceeding on September 19, 1949. Because of such decision, the court stated, 'holding that the property settlement agreement was not merged in the interlocutory or final decree of divorce and therefore said court was without jurisdiction to modify the terms of the property settlement agreement, it is res judicata that there is no power in the court to modify the support provision.' (P. 425 of 125 Cal.App.2d,[200 Cal.App.2d 195] p. 1040 of 270 P.2d.) It is settled law that where the parties have entered into an integrated nonseverable property settlement agreement, which has been approved by the court and made a part of the decree, the provisions of such agreement cannot be modified by the court granting the divorce without the consent of both parties. (Dexter v. Dexter, 42 Cal.2d 36, 40, 265 P.2d 873; Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865; Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988; Plumer v. Plumer, 48 Cal.2d 820, 313 P.2d 549.) ² Appellant concedes that the agreement cannot be modified.

Notwithstanding all of the foregoing, appellant contends that the court below, in this original divorce action, should have granted his motion for a rescission...