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


Civ. 15718.

Decided: December 24, 1947

Nathan Asimow, of Los Angeles, for appellant. Francis R. McKenna, of Montrose, for respondent.

The plaintiff, Robert P. Noble, and defendant, Hazel E. Noble, were married in the State of California on May 19, 1938. On September 28, 1945, they entered into a property settlement agreement which was executed in contemplation of divorce proceedings between them.

Plaintiff went to Las Vegas, Nevada, and obtained a judgment of divorce from defendant on October 17, 1945, such judgment, with reference to the agreement, providing as follows: ‘It is further ordered, adjudged and decreed that the property settlement agreement heretofore entered into by and between the parties hereto on the 28th day of September, 1945, be and the same is hereby confirmed, ratified, approved and by reference herein hereby made a part thereof.’ Plaintiff thereupon, in accordance with the terms of the property settlement agreement, executed a grant deed to the defendant conveying to her such interest as he then had in certain real property improved with a dwelling situate in Los Angeles County, California.

On November 27, 1945, in Los Angeles County, plaintiff filed action No. GL-C207, in which he seeks to quiet title to the said real property in his name. At the same time and place he filed a second action, being No. G1–D 1310, against defendant, containing two causes of action, the first being for an annulment of the marriage of the parties, and the second being for the purpose of obtaining a judgment setting aside the property settlement agreement theretofore entered into by the parties on the ground of fraud. The two actions were ordered consolidated for the purposes of trial and judgment.

Following trial of the consolidated actions the court made and entered its findings to the effect that it is true, as contended by plaintiff, that defendant was married to another living man at the time of her marriage to plaintiff and that such former marriage had not been dissolved by judicial decree and was in full force and effect; that it is untrue that prior to her marriage to plaintiff defendant represented to him that she was divorced and free to marry him and that plaintiff believed and relied on such statement by defendant when he married her; that it is true that defendant was not free to marry plaintiff but it is untrue that defendant concealed that fact from him prior to and at the time of the marriage of the parties hereto but in truth and in fact at the time of such marriage plaintiff knew defendant was a married woman and that her previous marriage had not been dissolved by judicial decree or otherwise; that it is true that plaintiff obtained a divorce from defendant on October 17, 1945, in the County of Clark, Nevada, dissolving their marriage, and that the property settlement agreement of the parties was confirmed ratified, approved and by reference made a part of the said decree of divorce; that it is true that plaintiff by grant deed transferred all of his interest in and to the involved real property pursuant to the conditions of the property settlement agreement and that defendant is now the owner and holder thereof and that plaintiff has no right, title or interest therein. By way of conclusions of law and judgment the court held that no fraud was practiced upon plaintiff by defendant which affected the said property settlement agreement, but that it is an agreement which is valid and binding on both parties thereto; that the court has no jurisdiction to pass upon the validity of the marriage; that defendant is the owner in fee simple absolute and is entitled to possession of such real property and is given judgment quieting her title thereto against plaintiff. Plaintiff appeals from the judgment in such consolidated cases.

The sole question presented by this appeal is, Did the trial court have jurisdiction, under all the circumstances here existing, to pass upon the validity of the property settlement agreement? In answering this query in the affirmative it will be noted that the real property involved herein is located in Los Angeles County, and that the agreement was executed by the parties at the same place. Plaintiff has invoked the aid of the superior court of such county in regaining both title and possession of the property, and by seeking a judgment vacating and nullifying the agreement on the ground of the fraud of defendant. The question of the validity of the agreement was therefore directly in issue before the court and required a finding thereon unless the aforementioned judgment of divorce of the Nevada court has made it res judicata, thus constituting an estoppel between the parties.

In order for the provisions of the property settlement agreement to have become so much a part of the Nevada judgment as to estop the parties from otherwise enforcing it, the judgment, by its terms, must be in such form as to justify the construction that it orders the performance of such provisions and could furnish the basis for execution or for contempt proceedings. The agreement must be incorporated into the judgment or its terms must be so specifically referred to as to derive independent effect from the judgment itself. Where, as here, the agreement was merely approved and ordered made a part of the judgment by reference, it falls short of this stature and cannot be made the basis of a plea of res judicata. Tieso v. Tieso, 67 Cal.App.2d 872, 874, 155 P.2d 659; Queen v. Queen, 44 Cal.App.2d 475, 479, 112 P.2d 755; Plummer v. Superior Court, 20 Cal.2d 158, 164, 124 P.2d 5; Lazar v. Superior Court, 16 Cal.2d 617, 620, 107 P.2d 249.

In any event, the California court would not have been divested of jurisdiction to pass upon the validity of the agreement even though the Nevada judgment had validly approved it. The defense of res judicata, while constituting a bar to the later action if properly pleaded and proved, does not oust the court of jurisdiction to scrutinize its scope and validity. Lincoln v. Superior Court, 22 Cal.2d 304, 308, 139 P.2d 13.

The judgment is affirmed.

I concur in the judgment of affirmance. Plaintiff-appellant contends that when the court declined to decide, on the merits, his claim that the marriage was void, it should not have rendered any decision on his separate cause of action which attacked the validity of the agreement. He merely makes the assertion and, for reasons which I think are obvious, cites no rule of law to support it. He makes no other attack upon the judgment. I would join in an opinion holding that the sole ground of his appeal is without merit.

But I must state my disagreement with the expression of the views of my associates in the main opinion for the reason that they relate to questions of law which were not presented to or decided by the lower court and are not presented on the appeal.

I find no question of jurisdiction in the case. Plaintiff has never questioned the power of the court to exercise the jurisdiction of which he invoked by the institution of his action. Defendant does not question the jurisdiction of the court to render judgment in her favor.

The main opinion holds, in effect, that approval by the court of a property settlement agreement is of no effect whatever unless the agreement is copied into the judgment or carried into it by words of command. This is a novel holding and one of considerable importance. It is entirely outside of any issue tried or determined in the court below. Defendant, to be sure, pleaded the Nevada judgment as res judicata as to the validity of the agreement, but she offered no proof in support of her plea. Before passing upon the validity of the plea of res judicata the court would have required evidence as to whether the validity of the agreement was made an issue in the Nevada case, and also proof as to the terms of the decree. No part of the record was placed in evidence. The parties stipulated that a divorce had been granted, but nothing more as to what had been determined by the judgment, and the judgment was not placed in evidence. Under these circumstances the court properly tried the issue of the validity of the agreement. Since no evidence was offered in support of the plea of res judicata the court properly ignored it in its decision of the case. How, then, can this court, with nothing in the record to act upon, determine what was or was not adjudicated by the Nevada court as to the validity of the agreement?

But in addition to this it is clear that the question could not be before us on the present appeal. Plaintiff, who takes the appeal, has never contended that the Nevada decree bars his present action to set aside the agreement. The question could be before us only if the judgment appealed from had declared the Nevada judgment to be a bar to plaintiff's present attack upon the agreement, in which case plaintiff would no doubt have questioned that holding on appeal, or, if the defense had been rested upon the Nevada decree and the decision had been adverse to defendant, in which case she would have had an opportunity on appeal to procure a reversal of that holding. But the decision was solely on the merits.

I express no opinion as to the manner in which a property settlement agreement must be approved by the court, in order that it will operate as a bar to a subsequent action seeking annulment of the agreement for fraud. Anything said on that point would be pure dictum.

KINCAID, Justice pro tem.

WOOD, J., concurs.

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