Yost v. Yost

• Citation: 116 Cal.App.2d 572,253 P.2d 696
• Court: California Court of Appeals
• Decision Date: 06 March 1953
• Parties: YOST v. YOST. Civ. 19169.

Page 696

253 P.2d 696

116 Cal.App.2d 572

YOST v. YOST.

Civ. 19169.

District Court of Appeal, Second District, Division 3, California.

March 6, 1953.

James D. Garibaldi, and Iverson & Hogoboom, Los Angeles, for appellant.

Donald Paul Covert, Glendale, for respondent.

PARKER WOOD, Justice.

Action for declaratory relief. Defendant appeals from judgment in favor of plaintiff.

On April 14, 1944, appellant (husband) commenced an action against respondent (wife) for divorce. They entered into a property settlement agreement which provided, in part, that appellant would pay respondent $100 per month for her support and the support of their child. The action was tried as a default. In the interlocutory decree of divorce which was granted to appellant, it was ordered that he pay to respondent $100 per month for her support and the support of the child. The agreement was filed but it was not made a part of the decree.

In December, 1944, appellant married Miss Sandirfer in Mexico.

On May 15, 1945, respondent made a motion to set aside the interlocutory decree upon the ground that it had been procured through fraud.

On June 7, 1945, appellant and respondent entered into a property settlement agreement which provided, in the first three paragraphs thereof, that the property agreement of April 12, 1944, was thereby cancelled; that certain furniture and an automobile should be the separate property of respondent; that appellant would pay to respondent $100 per month for the support of their child, and that respondent should have custody of the child.

In paragraph IV thereof (which is the provision in controversy here), it was provided:

'It Is Also Agreed that the Party of the First Part, Ralph E. Yost, will pay to the Party of the Second Part, Nancy Colver Yost, the sum of one Hundred Fifty ($150.00) Dollars per month, commencing on the 1st day of July, 1945, and continuing until said Nancy Colver Yost shall remarry.

'It Is Further Provided, however, that as long as the Party of the First Part is in the service of the Government of the United States, as he now is, he shall have the privilege of paying the Party of the Second Part Fifty ($50.00) Dollars or more per month on account of each and all of said monthly installments under this Paragraph IV set forth, and that when the said Party of the First Part is out of the service, and establishes a medical practice or other business sufficient so that his earnings will warrant him in doing so, he will continue to pay to the Party of the Second Part, Nancy Colver Yost, the sum of One Hundred Fifty ($150.00) Dollars per month, plus arrearages on account of said suspended payments during the time he was in said service.'

Paragraph V (which is not in controversy here) pertains to insurance policies. The remaining paragraphs (also not in controversy) contain general provisions regarding the release of rights and obligations of each to the other.

On June 8, 1945, respondent stipulated that her motion to set aside the interlocutory decree be denied. Said motion was denied. On June 15, 1945, appellant obtained a final decree of divorce.

After said agreement of June 7, 1945, was made, and during the time appellant was in the army, he paid the $100 per month for the support of the child and $50 per month for the support of respondent. His military service ended in August, 1945, and in the following September he began the practice of medicine in Vallejo. He continued to pay $100 per month for the child and $50 per month for respondent until October 1, 1950, when the court increased the amount for the child to $150 per month. Then he continued to pay said amount for the child. After said October 1st, he did not pay any amount for the support of respondent.

In October, 1949, she sought an order of court in the divorce proceeding requiring him to pay $550 per month for the support of the child and herself. She alleged therein that he had the ability to pay that amount. The existing order was not modified. In August, 1950, she again sought such a modification and the court decided that the order for the support of respondent was invalid because she was the one against whom the divorce decree had been granted. It was in this last mentioned proceeding that the amount for child support was increased, as above stated, to $150 per month.

In the amended complaint herein it is alleged that there is a controversy relating to the rights of the parties under paragraph IV of said agreement in that: (1) Plaintiff (respondent) claims that defendant (appellant) should pay $150 per month for her support since September, 1945, when he established medical practice in Vallejo; (2) defendant claims that he is not bound to pay more than $50 per month until such time as he has paid all of his debts and has sufficient money remaining to pay $150 per month; (3) plaintiff alleges that the net earnings of defendant are now and for several years have been in excess of $12,000 per year and are sufficient to warrant him in paying $150 per month; (4) defendant claims that his net income does not warrant him in paying more than $50 per month for the support of plaintiff, and that only $50 per month for the support of plaintiff actually becomes due each month.

In the answer to the amended complaint it is alleged that the agreement of June 7, 1945, was entered into by defendant against his will and as a result of force and coercion on the part of plaintiff in that plaintiff contacted defendant's commanding officer and caused the officer to threaten defendant with a court-martial and discharge from the army if he refused to sign the agreement.

The court found that defendant entered into said amended agreement of June 7th freely and voluntarily and not against his will or as a result of force, menace or coercion; that defendant's conduct with regard to the amended agreement, during all times after its execution and prior to the filing of this action, evinces an intention to abide by the contract; that defendant has ratified said agreement; defendant made no attempt prior to the filing of this action to disaffirm the agreement; he claimed, for the first time, in 1949 and after plaintiff had begun court proceedings to force him to pay $150 per month for her support, that the due date of $100 of said amount was suspended until his financial ability was greater; said agreement provides in paragraph IV that defendant would pay plaintiff $150 per month for her support commencing on July 1, 1945, and continuing until she remarried, the same being in addition to amounts to be paid by defendant for support of the child; said paragraph provides that defendant, as long as he remained in the service of the United States Government, would have the privilege of paying plaintiff only $50 per month for plaintiff's support; he remained in said service until August 31, 1945, when he began the practice of medicine in Vallejo; he paid only $50 per month for the support of plaintiff thereafter and through September, 1950, and he has paid nothing for her support since September, 1950; pursuant to the terms of said paragraph IV, the difference between $150 per month to be paid by defendant for plaintiff's support and the $50 per month actually paid by him for the months of July and August, 1945, referred to in the agreement as 'arrearages,' totaling $200, was not to become due until defendant had the financial ability to pay such arrearages; he has not had such ability; the difference between the $150 per month to be paid for plaintiff's support and the amounts paid by him after September 1, 1945 to October 17, 1951 (the date the matter was submitted for decision), is $8,050, which amount is due to plaintiff. (There are findings regarding insurance policies, but there is no question on appeal regarding those findings.)

Judgment was for plaintiff for $8,050, and certain amounts for interest and attorney's fees. (The judgment included a provision regarding life insurance, but such provision is not material on this appeal.)

Appellant contends that the court erred in failing to find that said agreement is void because it was procured by...