Wilson v. Wilson

• Decision Date: 27 May 1960
• Citation: 5 Cal.Rptr. 317,54 Cal.2d 264,352 P.2d 725
• Court: California Supreme Court
• Parties: , 352 P.2d 725 Marjorie E. WILSON, Respondent, v. Kenneth D. WILSON et al., Appellants. Sac. 7018.

Page 317

5 Cal.Rptr. 317

54 Cal.2d 264, 352 P.2d 725

Marjorie E. WILSON, Respondent, v. Kenneth D. WILSON et al., Appellants.

Sac. 7018.

Supreme Court of California, In Bank.

May 27, 1960.

Rehearing Denied June 22, 1960.

Henry V. Cleary, Palm Springs, for appellants.

Garry, Dreyfus, McTernan & Keller and Francis J. McTernan, San Francisco, for respondent.

DOOLING, Justice pro tem.

Defendants appeal from a summary judgment entered against them in an action on a promissory note. They also appeal from an order sustaining plaintiff's demurrer to their counterclaim and from an order denying defendants' motion for a summary judgment. These orders are not appealable (Jeffers v. Screen Extras Guild, Inc., 107 Cal.App.2d 253, 254, 237 P.2d 51; Schulze v. Schulze, 121 Cal.App.2d 75, 83, 262 P.2d 646), and the attempted appeals therefrom will be dismissed.

The controlling question is whether the trial court properly granted plaintiff's motion for a summary judgment. Such judgment is purely statutory (Code Civ.Proc. § 437c) and can be employed only in cases where no material issue of fact is presented. Desny v. Wilder, 46 Cal.2d 715, 725, 299 P.2d 257; Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 555-556, 122 P.2d 264; 28 Cal.Jur.2d § 41, p. 670.

Counsel were agreed upon the oral argument that no material issue of fact was presented and we are satisfied from an examination of the record that this is true and that the trial court properly entered summary judgment for the plaintiff.

The following undisputed facts appear from the pleadings and the affidavits of the parties: On October 28, 1954, defendant Kenneth and plaintiff Marjorie Wilson entered into a property settlement agreement by which they undertook to settle their property rights and other rights, duties and obligations arising out of their marriage. Kenneth agreed to pay Marjorie $100 per month for the support of each of their two minor children during minority and $250 a month for Marjorie's 'support and maintenance' for 24 months after entry of any interlocutory divorce decree. As part of the agreed division of property, Marjorie was to receive $9,000, payable by a $6,000 promissory note due two years after execution of the agreement and a $3,000 promissory note due three years after execution of the agreement, with no interest until the notes became due, and interest at six percent thereafter. Pursuant to the agreement and on the same date October 28, 1954 Kenneth and his mother, defendant Nettie Wilson, as co-maker, executed the two notes. Other property and debts were also allocated under the agreement. Thereafter, on November 15, 1954, Marjorie obtained an interlocutory decree of divorce, and the property settlement agreement was incorporated therein.

Kenneth paid the $250 per month for Marjorie's support for the agreed 24 months, the final payment being made on October 1, 1956. Thereafter, on October 28, 1956, the $6,000 note became due but defendants were unable to pay it. To meet this situation, Kenneth's attorney then submitted to Marjorie's attorney a proposed agreement, and the parties signed it on November 19, 1956. After referring to the parties' property settlement agreement, the default in payment of the $6,000 promissory note, and Kenneth's payment to Marjorie 'as and for her support and maintenance the sum of $250.00 per month, in addition to the sum of $200.00 per month for the support and maintenance of the two minor children of the parties, pursuant to said property settlement agreement,' the agreement of November 19, 1956, provided as follows:

'1. Kenneth * * * agree(s) to continue the said payments on account of the support and maintenance of said Marjorie * * * in amount of $250.00 per month, * * * and for the support and maintenance of said minor children in the amount of $200.00 per month until such time as the principal of said ($6,000) promissory note shall be paid and discharged in full.

'2. Marjorie * * * waives the provisions of said promissory note providing for interest * * * and agrees that no interest will be payable upon said note so long as the payments hereinabove provided shall be maintained.

'3. At such time as the said principal sum of said promissory note shall be paid * * * Kenneth * * * shall have no further obligation to pay the said sum of $250.00 per month, or any other sum, pursuant to the provisions of said property settlement agreement or otherwise, on account of the support and maintenance of said Marjorie. * * * Nothing herein shall be construed, however, to modify the obligation of Kenneth * * * to continue payment of the said sum of $200.00 per month for the support and maintenance of the said minor children of the parties.

'4. In consideration of the agreements of Kenneth * * * hereinabove set forth, Marjorie * * * agrees to forbear legal action of any nature whatsoever for the enforcement or collection of said promissory note for such period of time as Kenneth * * * shall continue to make payments on account of the support of said Marjorie * * * as hereinabove specified.'

Kenneth made the monthly payments pursuant to the agreement of November 19, 1956, but did not pay the $3,000 note when it became due. Marjorie then brought this action to recover on that note. Defendants answered, setting up the November 19, 1956 agreement as an affirmative defense and by way of counterclaim, alleged that the $250 monthly payments made to Marjorie pursuant to that agreement constituted usurious interest for the forbearance of suit on the $6,000 note. Defendants sought credit for treble the amount of the allegedly usurious payments made during the year preceding the filing of their counterclaim (Usury Law, Deering's General Laws, Act 3757, § 3, Stats.1919, p. lxxxiii West's Ann.Civ.Code, § 1916-1 et seq., plus the amount of the allegedly usurious interest paid prior to the year preceding the filing of the counterclaim. Shirley v. Britt, 152 Cal.App.2d 666, 670, 313 P.2d 875. The amount so credited would exceed the total of the $6,000 and $3,000 notes so as to effect their discharge, and would permit defendants to recover from plaintiff an additional amount. 91 C.J.S. Usury § 62, p. 644; see Westman v. Dye, 214 Cal. 28, 30, 36-38, 4 P.2d 134; Aitken v. Southwest Finance Corp., 131 Cal.App. 95, 104, 20 P.2d 1000. The parties have at all times agreed that the additional monthly payments made pursuant to the 1956 agreement were not to be credited as payments on the $6,000 note.

Plaintiff demurred generally to the affirmative defense and counterclaim, and defendants moved for a summary judgment. Defendants presented Kenneth's affidavit in support of their motion and plaintiff filed her opposing counter-affidavit. In her counter-affidavit, plaintiff averred that the 1954 agreement's limitation of the payment of $250 a month for her support for two years was directly connected with the agreed time for payment of the $6,000 note at the end of said two-year period and the additional sum of $3,000 one year later; that the parties intended that payment of the $6,000 note 'would provide plaintiff with sufficient capital to invest in a business and to become self-supporting, thereby relieving * * * Kenneth * * * of his legal obligation to maintain and support plaintiff'; that when the $6,000 note was not thereafter paid when due, Kenneth 'knowing * * * that plaintiff required the said sum in order to become self-supporting, * * * proposed to plaintiff that he continue to pay the * * * $250 per month to plaintiff for her support and maintenance until said note was paid,' and the November 19, 1956, agreement was accordingly executed by Kenneth and Marjorie; and that in addition to failing to pay the two promissory notes concurrently executed with the parties' original 1954 agreement, Kenneth had 'failed and refused' to perform his promise under the 1954 agreement to pay community debts amounting to some $3,460.

The trial court denied defendants' motion and sustained plaintiff's demurrer to defendants' counterclaim without leave to amend. Plaintiff then moved to strike defendants' answer and for a summary judgment on her complaint. She presented a supporting affidavit, the averments of which were devoted solely to her cause of action on the unpaid $3,000 note owing by defendants, and defendants filed Kenneth's counter -affidavit, reiterating the premise of their counterclaim as to the alleged usurious character of the 1956 agreement. At the hearing, the trial court apparently disposed of the parties' opposing contentions as if there had been cross-motions for summary judgment on plaintiff's complaint and on defendants' counterclaim for usury, for the ensuing summary judgment for plaintiff recites that it was rendered after the 'court (had) read the pleadings and affidavits on file in this cause.'

It therefore appears that the parties and the trial court proceeded upon the assumption that no material issue of fact was presented. We agree that they were correct in that assumption.

The averments of respondent's affidavit, that it was the intention of the parties that the $6,000 provided for in the first promissory note to fall due would provide respondent with sufficient capital to become self-supporting thus relieving appellant of his legal obligation to further support respondent and that the promise to continue the $250 payments for support was made to carry out this intention when the $6,000 note was not paid when due, were not denied by appellant, and no other triable issue of fact was presented, the sole question remaining being one of law only as to whether the claim of usury was tenable under the undisputed facts. That question of law could appropriately be determined on a motion for summary judgment. There remains, however, the question of the propriety of the trial court's determination that plaintiff was entitled as a matter of law to the summary judgment entered.

Defendants' contentions...