Wright v. Wright

Citation306 P.2d 536,148 Cal.App.2d 257
CourtCalifornia Court of Appeals
Decision Date04 February 1957
PartiesIrwin R. WRIGHT, Plaintiff, Cross-Defendant and Appellant, v. Margaret WRIGHT and Scott Roberts, Defendants, Margaret Wright, Corss-Complainant and Respondent. Civ. 21860.

Jerome Weber, David Hoffman, Los Angeles, for appellant.

Glenn S. Roberts, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from certain parts of a judgment entered on December 9, 1955, which pertains to a property settlement agreement, and which awards the defendant and cross-complainant permanent alimony and awards attorney's fees to her counsel.

The plaintiff, cross-defendant and appellant will hereinafter be referred to as the husband, and the defendant, cross-complainant and respondent will hereinafter be referred to as the wife.

A resume of the facts is as follows: The husband and wife were married on or about September 14, 1937, and separated about April 1, 1954. No children were born as the issue of the marriage. The husband brought an action in divorce July 15, 1954. The wife filed an affidavit for an order to show cause in re alimony pendente lite, attorney's fees and costs on August 3, 1954, wherein she set forth, among other things, that she had no money; that she was employed at a hat check stand two or three nights per week at 75 cents per hour plus tips; that she expected to work in the future if physically able; that there were two parcels of real property and two automobiles belonging to the parties. The husband filed an answering affidavit in which he set forth, among other things, that the wife made about $80 per month; that his monthly income from all sources was about $360; that his wife formerly had tuberculosis, but was cured six years ago; that she was physically fit and able to support herself and that $75 per month was reasonably necessary for the wife's support and was within his ability to pay.

The order to show cause was heard on August 12, 1954. At that time there was introduced into evidence an affidavit of Dr. Reginald H. Smart, M.D., who specialized in diseases of the chest. The affidavit of the doctor set forth that Mrs. Wright first became ill at the age of sixteen years when she had tuberculosis of the right kidney, which kidney was removed surgically; further, that in January, 1941, she was found to have tuberculosis in both lungs, and in March, 1942, was admitted to a sanatorium where she remained as a patient. Further, that in July, 1942, her right lung was collapsed by means of air refills, and in February, 1943, it was necessary to collapse the left lung by the same method. That she was continued on bilateral pneumothorax treatments in the sanatorium, and after discharge, the refills were administered in the office of the affiant, until June, 1948, when the treatments were discontinued. She had periodic checkups ever since that time. The affiant doctor diagnosed her ailment as tuberculosis of the bladder and kidney, arrested and far advanced, bilateral pulmonary tuberculosis arrested; further that he had allowed her to work part-time as a hat check girl, but that he felt that she would never be able to work full-time or engage in any occupation which entails any degree of physical, emotional or mental strain. Also, that she had had intensive treatment for ten years before the disease was brought under control, and that any time she was subjected to undue stress or strain the disease might easily become reactivated and a relapse ensue; that it was imperative that she continue to live a sheltered life and not be expected to become self-supporting.

On August 16, 1954, the court commissioner filed his findings and recommended order. The substance of the findings are that the wife suffers from tuberculosis; that the husband struck the wife on numerous occasions and the wife was in fear; that the wife needed about $100 per month in addition to her earnings for her support and maintenance and payments on the family home. The court ordered the husband to pay $100 per month to the wife for her support and maintenance, and in addition thereto, to make the monthly payment of $56.96 on the house, plus stated attorney's fees and costs.

On August 26, 1954, the husband filed a first amended complaint wherein he alleged extreme cruelty on the wife's part and that there was community property belonging to the parties consisting of a single-family residence located in North Hollywood, and an income-producing property which consisted of a four-apartment building located in Van Nuys, and two automobiles and some furniture and furnishings. The husband requested judgment for a divorce and all of the community property.

On December 10, 1954, the wife filed an answer to the first amended complaint, wherein she set forth that the community property consisted of the two automobiles mentioned by the husband, some securities and some other items, and then set forth that the two parcels of real property were not community property, but were at all times owned in joint tenancy by the parties. She denied any acts of cruelty or other wrongdoing. On the same date she filed a cross-complaint wherein she alleged that the real property was owned as above set forth in the answer to the first amended complaint, and requested that all of the community property be awarded to her. She further alleged that for many years she had been treated for tuberculosis, that she was unable to work full time and to support herself and is constantly under the care of doctors; that she had no funds for support and maintenance and for costs and attorney's fees. She further claimed that the husband had physically assaulted her and that the court in this action had compelled him to remove from the residence place on or about August 21, 1954, and restrained him from harassing her.

The husband filed an answer to the cross-complaint on December 20, 1954, wherein he admitted the allegations with reference to the community property holdings, and that the real property was owned by them as joint tenants. With reference to the allegations of her health, he denied the same excepting that he admitted that at one time she had been treated for tuberculosis, but alleged that the condition was arrested many years ago, that she only saw a doctor for check ups not more than once a year, and further that she participated in athletics and had been employed for several years.

On February 4, 1955, an order to show cause filed by the husband for a modification of the support and maintenance allowance theretofre ordered came on to be heard. The court ordered that the order of August 12, 1954, be modified to provide that the husband pay to the wife $85 per month for her support and maintenance, and in all other respects the previous order was to remain in full force and effect.

On May 25, 1955, after considerable negotiations between the parties and their respective attorneys, a property settlement agreement was entered into. Under the agreement it was set forth that it was the desire of the parties that their community and joint property be divided and 'provision made for partial support of the wife'. The husband was to pay to the wife $50 per month for six months, commencing July 1, 1955, and $25 per month for six months commencing January 1, 1956, such 'payments to be the only payments made by husband to wife as and for the support and maintenance' of the wife. The wife was to receive the family residence in North Hollywood, the furniture and furnishings located therein, a 1951 Pontiac automobile, one-half of the Blair Holding Company stock in the possession of the husband and one poodle dog, and in addition thereto, $2,500 in cash. The husband was to receive the income property located in Van Nuys, a 1949 Pontiac automobile, all of the furniture then in his possession and one airedale dog. Each released the other from any claims arising out of the marital relation, and each released the other from any right to support and maintenance or otherwise, and each was to pay his or her own debts, and the husband was to pay to the wife's attorney a fee of $255 in addition to the fees previously allowed.

On June 29, 1955, the wife caused a letter to be directed to the husband through his attorney, wherein it was set forth that the wife had recently been to the doctor and that he, the doctor, had informed her that a spot appeared on her lung and that she might be incapacitated. It was further set forth in the letter that the doctor advised that under the circumstances, the wife would be unable to support herself, and further that he urged that she not enter into any agreement whereby her husband, under such circumstances, would be released of all responsibility and she become a public charge. The letter also set forth that such was not anticipated at the time of the negotiations for the settlement agreement--that the wife was satisfied with the agreement excepting as to those portions which would discharge the husband from the obligation for the support and maintenance of the wife in the event she should become physically unable to provide for herself. There then followed the statement that by reason thereof, the wife would not be bound by the agreement and did rescind the same and offered to return all things of value which she had received by virtue of the agreement. Attention was called to the fact that the case was set for trial the following month and that it would be desirable to negotiate a new agreement, taking into consideration the present circumstances as related, and that if no such new agreement could be negotiated then the matter could be submitted to the court for adjudication.

At the time of the sending of the letter above mentioned all executory provisions of the agreement had been performed except the monthly payments to be made for her support and...

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11 cases
  • Espy v. Espy
    • United States
    • California Court of Appeals Court of Appeals
    • January 22, 1987
    ...on a partial modification. (In re Marriage of Nicolaides (1974) 39 Cal.App.3d 192, 198, 114 Cal.Rptr. 56; Wright v. Wright (1957) 148 Cal.App.2d 257, 270, 306 P.2d II. The Agreement Relative to Division of Marital Property is not Modifiable Despite its Incorporation in the Interlocutory Dec......
  • Espy v. Espy
    • United States
    • California Court of Appeals Court of Appeals
    • January 22, 1987
    ...on a partial modification. (In re Marriage of Nicolaides (1974) 39 Cal.App.3d 192, 198, 114 Cal.Rptr. 56; Wright v. Wright (1957) 148 Cal.App.2d 257, 270, 306 P.2d 536.)II. The Agreement Relative to Division of Marital Property is not Modifiable Despite its Incorporation in the Interlocutor......
  • Espy v. Espy
    • United States
    • California Court of Appeals Court of Appeals
    • January 22, 1987
    ...embark on a partial modification. (In re Marriage of Nicolaides (1974) 39 Cal.App.3d 192, 198, 114 Cal.Rptr. 56; Wright v. Wright (1957) 148 Cal.App.2d 257, 270, 306 P.2d 536.)II. The Agreement Relative to Division of Marital Property is not Modifiable Despite its Incorporation in the Inter......
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    • California Court of Appeals Court of Appeals
    • May 16, 1974
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