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MOSS v. MOSS.
Plaintiff sued for declaratory relief seeking a declaration that a contract executed by plaintiff and defendant on March 21, 1928, and a modification thereof dated October 11, 1932, were “illegal, void, and against public policy”. A demurrer to the complaint was sustained without leave to amend, and plaintiff's application for leave to file a proposed amended complaint was denied. A judgment for the defendant followed.
The complaint alleged the facts of the marriage of the parties on October 8, 1919, their separation on December 24, 1927, the execution of the contract on March 21, 1928, the entry of an interlocutory decree of divorce upon the wife's complaint on March 31, 1928, and the entry of the final decree on April 18, 1929. Interspersed with these allegations of facts are found conclusions of the pleader that the husband had ground for divorce against the wife, but that she had no ground for divorce against him; that he stated to the wife that he was willing that she obtain a divorce, and that she agreed to do so; that he “agreed at that time that in consideration of such divorce and for no other consideration whatsoever, he would enter into a property settlement agreement with defendant to settle and determine their respective property rights and to provide for defendant's support and maintenance until she should remarry”. It is then alleged that on October 11, 1932, the parties “for a valuable consideration” executed an agreement modifying the agreement of 1928 and obligating the plaintiff to pay to defendant the sum of $200 a month instead of the sum of $250 stipulated to be paid under the original contract. The agreement of 1928, the complaint for divorce, the interlocutory and final decrees are attached to and made a part of the complaint. The agreement of 1932 is not. From the allegations of the complaint it appears that the unexecuted portions of the first agreement were all superseded by the latter so long as the plaintiff continued to abide by its terms. There are no allegations disclosing whether other terms of the agreement which were required to be executed long since have been executed or not.
Appellant's pleaded “controversy” rests wholly upon his own erroneous conclusions of the purport and legal effect of the written agreement and of the divorce proceedings. But as these are all made a part of the complaint the “court in hearing the demurrer will examine the exhibits and treat the pleader's conclusions as surplusage”. National Pavements Corp. v. Hutchinson Co., 132 Cal.App. 235, 238, 22 P.2d 534, 535, citing Peak v. Republic Truck Sales Corp., 194 Cal. 782, 790, 230 P. 948, and Bashford v. Levy & Zentner Co., 123 Cal.App. 204, 210, 11 P.2d 51.
Turning to the exhibits, we find that, contrary to the pleading, the wife had a valid ground for divorce and the husband had none, because the decree of divorce recites that the wife had established such grounds upon a hearing at which both parties appeared and waived findings of fact. That decree is of course final and conclusive. Borg v. Borg, 25 Cal.App.2d 25, 29, 76 P.2d 218; McMickens v. McMickens, 220 Cal. 731, 734, 32 P.2d 597. Turning to the exhibit of the agreement, it appears that, contrary to the pleading that the divorce was its sole consideration, the parties had been separated and had been living apart, that the wife had commenced an action for separate maintenance, and that the agreement was executed because of “The desire of the parties hereto to settle and determine their respective property rights and the right of said party of the first part to receive support and maintenance from said party of the second part”. The husband thereupon agreed to convey to the wife as her separate property described real and personal property, and the wife agreed to convey described real and personal property to the husband. As further consideration the wife surrendered all claims existing or arising in the future against the husband or against his estate, family allowance, homestead, or right of administration. The wife further waived the right, “in the event that either of the parties hereto” should apply for a divorce, to make any claim against the husband for support, alimony, counsel fees, or costs.
The demand for declaratory relief is based upon this framework. It pleads a contract which is clear and unambiguous, and which requires no interpretation. It presents nothing more than an attempt to set aside a contract upon the ground of fraud where an action for that purpose would have been long since barred by the statute of limitations and where in equity the plaintiff would have been denied relief because the alleged fraud was of his own procurement. For these reasons the pleading does not present a case of “actual controversy relating to the legal rights and duties of the respective parties” made necessary to the maintenance of the action by section 1060 of the Code of Civil Procedure.
Next the appellant argues that he should be permitted under the code section to raise the question of the legality of the contract notwithstanding the lapse of time and the equities involved. If this were so we would have no hesitation in holding that the contract was valid in all respects. It is precisely the type of agreement which is authorized by section 159 of the Civil Code, and which has been approved in a long line of decisions. Brown v. Brown, 83 Cal.App. 74, 256 P. 595; Cookinham v. Cookinham, 219 Cal. 723, 28 P.2d 1045; Queen v. Queen, 44 Cal.App.2d 475, 112 P.2d 755. As in the cases cited the agreement was executed after the parties had separated and were living apart. But there is the additional circumstances here that the wife had instituted proceedings for separate maintenance, and it may be fairly inferred that the disposition of those proceedings was an added consideration for the agreement. Taking the pleading as a whole “the agreement does not indicate that it was promotive of divorce but rather incidental thereto, the means employed in the disposition of the property of the parties and the assumption of an obligation to support the wife”. Queen v. Queen, supra, 112 P.2d at page 759.
It is apparent, therefore, that the complaint fails to state a cause of action for declaratory relief. The appellant could not attack the validity of the contract without conceding his own fraud in its procurement. “He who consents to an act is not wronged by it.” “Between those who are equally in the right, or equally in the wrong, the law does not interpose.” Civil Code sections 3515, 3524. Where the parties are in pari delicto the courts will refuse aid to either party, and “if the plaintiff cannot establish his case without showing that he has broken the law, the court will not assist him”. Wise v. Radis, 74 Cal.App. 765, 776, 242 P. 90, 94.
The suggestion that these principles are not applicable in a case involving a divorce proceeding because of the state's interest in preserving the marital relation is not pursuasive. This is not a case to set aside the decree of divorce. None of the allegations of the complaint would sustain an attack upon the validity of that decree. To the contrary, since the appellant alleged that, at the time of the execution of the contract, he had good grounds for a divorce and that the respondent had no legal grounds it must be presumed that he obtained an advantage in the dissolution of the marital relation and hence, that, because of the confidential relation between husband and wife the contract was secured by him through undue influence and fraud. Civ.Code, §§ 158, 2235; McKay v. McKay, 184 Cal. 742, 746, 195 P. 385. The divorce proceedings having thus been instituted through the fraud of the appellant, by the express allegations of his complaint he instigated a fraud upon the court and is estopped from attacking the decree. Estate of Davis, 38 Cal.App.2d 579, 584, 101 P.2d 761, 102 P.2d 545.
These circumstances require an affirmance of the judgment if all other reasons given should fail. Taking the allegations of the complaint to be true, as we must on this appeal, the decree of divorce is now unassailable by either party. The contractual obligations of the wife to make the conveyance to the appellant as partial consideration for the contract will be presumed to have been met. Code of Civil Procedure, section 1963, subdivisions 20, 28. It is not possible to restore the respondent to the status quo of the marital relation as of the date of the divorce. The delay of nine years in commencing the action discloses upon the face of the complaint such laches as would bar the attack in any proceeding where the principles of equity were invoked. If the proceedings for declaratory relief are sui generis, and not equitable, as contended by appellant, they are at least so closely akin to equity that certain equitable principles cannot be overlooked. Section 1061 of the Code of Civil Procedure provides that “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” The clear meaning of this section is that when the trial court determines that a declaration is not “proper” it may deny the relief. And certainly a declaration would not be proper if it was unconscionable or so inequitable as to result in a miscarriage of justice. That the trial court may deny the relief under such circumstances upon a demurrer to the complaint, and without trial of the facts, may not be questioned. City of Alturas v. Gloster, 16 Cal.2d 46, 49, 104 P.2d 810.
The judgment is affirmed.
NOURSE, Presiding Justice.
STURTEVANT and SPENCE, JJ., concurred.
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Docket No: Civ. 11684.
Decided: September 03, 1941
Court: District Court of Appeal, First District, Division 2, California.
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