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District Court of Appeal, Second District, Division 1, California.


Civ. 15770.

Decided: October 14, 1947

A. C. Ritter, of Los Angeles, for appellant. Walter H. Young, of Los Angeles, for respondent.

The instant action was originally filed as a separate maintenance action by plaintiff wife as well as for declaratory relief. Defendant husband countered with a cross-complaint for divorce on the ground of extreme cruelty, whereupon plaintiff with leave of the court filed her first amended complaint for divorce in which she alleged extreme cruelty on the part of defendant. At the trial defendant did not oppose a dissolution of the marriage and offered no proof on his allegations of cruelty set up in the cross-complaint. Plaintiff made pro forma proof of her allegations of mental cruelty and was awarded a decree of divorce, whereupon the trial proceeded upon questions involving property only.

The record discloses that the parties were first married on October 8, 1928; that on August 12, 1940, an interlocutory decree of divorce was granted to plaintiff wife and that on January 13, 1942, the final judgment of divorce was entered dissolving the marriage of October 8, 1928. Thereafter, to-wit, on May 11, 1945, the parties remarried, neither having contracted a marriage in the meantime, and on July 31, 1946, the interlocutory judgment of divorce which is the subject of this appeal was granted.

The complaint herein asked for a declaratory judgment with respect to certain property settlement agreements previously entered into by the parties, it appearing that on October 1, 1928, prior to their first marriage, the plaintiff and defendant entered into an antenuptial agreement defining their respective property rights, and that from time to time during their first marriage and thereafter, they entered into several property agreements dated June 28, 1935, November 16, 1936, December 16, 1936, November 1, 1937, December 2, 1937, and August 24, 1943, each new one reaffirming and ratifying those preceding it. On August 12, 1940, when plaintiff was awarded her interlocutory decree of divorce of the first marriage, she presented those agreements which had been entered into up to that date, and they were approved by the court in that decree. The interlocutory decree herein adjudged that all of the aforementioned agreements, including that of August 24, 1943, ‘are valid, subsisting and in full force and effect and that the plaintiff is entitled to receive from the defendant by virtue of said agreements, the sum of $300.00 per month on the first of each and every month * * * that the said agreements are not binding on this court in awarding support to the plaintiff’; it being further adjudged that beginning August 1, 1946, and until her remarriage plaintiff should receive in addition thereto the sum of $600 per month for her support, as well as community property amounting to $11,101.01, consisting of $6,836.01 cash, war bonds valued at $3,365 and 100 shares of stock valued at $900 all of which was acquired during the period of the second marriage. The court also assigned to the plaintiff for the remainder of her natural life a portion of the homestead theretofore declared by her upon defendant's separate property known as the Santa Ynez Ranch.

This appeal is prosecuted from those portions of said interlocutory decree awarding plaintiff $600 per month support, the community property and the homestead, above referred to.

The principal issue presented by this appeal is stated by respondent as follows: ‘Does a woman who remarries the same husband from whom she had been previously finally divorced, acquire by virtue of such remarriage, any rights to community property, support and homestead, under the second marriage in contravention to the provisions of an ante-nuptial and property settlement agreements entered into in consideration of, contemplation of, and concerning the first marriage?’

In this connection appellant urges that all of the agreements referred to were executed by the parties thereto ‘having in mind the fact that they might or might not be married or unmarried. They expressly recited that the agreements were binding regardless of whether or not they were reconciled or living apart; * * *. If, after the interlocutory decree in the first case, they had reconciled, the terms of the agreements were still binding on both parties. The new marriage created no different situation from that’, moreover, ‘at the time plaintiff and defendant remarried their property rights were entirely settled between themselves by contract and the divorce decree which plaintiff had obtained.’ (Emphasis included.)

An examination of the ante-nuptial agreement of October 1, 1928, discloses a recitation therein to the effect that ‘Whereas a marriage is about to be solemnized between the parties hereto * * * and in anticipation of such marriage, the parties desire by an ante-nuptial agreement to fix and determine the rights of each of them in any and all property’; and in ‘consideration of said marriage’ each party specifically waived any and all rights in and to the property of the other both during life and after death.

The agreement of June 28, 1935, made while the parties thereto were living separate and apart, was executed in consideration of mutual covenants and agreements therein contained for the purpose of ‘finally adjusting and settling all rights, present or future, including property rights, rights of second party to support and maintenance, and any other rights of whatsoever kind or nature arising out of the marital status of first and second parties, irrespective as to whether there may be a subsequent reconciliation, suit for separate maintenance or divorce’. By the terms of paragraph seventh of this agreement, the parties specifically recognized the possibility of a reconciliation, and agreed that ‘notwithstanding resumption of former relations, reconciliations or subsequent separations' the monthly payments agreed to be paid by husband to wife ‘shall continue as in this agreement provided.’

Each of the various property settlement agreements subsequently executed by the parties was denominated ‘amendment to agreement’; that of August 24, 1943, made after the entry of the final decree of divorce in the first action, being headded ‘Fifth Amendment to Agreement’; each and all of them reaffirming and ratifying the antenuptial agreement and the agreement of June 28, 1935, and all of them purporting to limit the rights of respondent in the property of appellant.

While appellant argues that the second marriage constituted ‘a reconciliation or a resumption of former relations' as contemplated by the language used in the various contracts, the record discloses that it was not so understood. At the trial of the instant action, the following questions were propounded to respondent: ‘Now, before you and he were married (the second time) did you have any conversations with Dr. Barham about signing any new written agreements?’ To which she replied: ‘Yes. He wanted me to sign a paper saying that he was to have the entire use of his salary and I wasn't to have anything to say about that * * *. And I said no, that I thought we had signed too many agreements already and that marriage was supposed to be trust and fifty-fifty and if it wasn't then I didn't think it was going to be much of a marriage, and so I refused to sign the papers.

‘The Court: This was before the second marriage? A. Yes.

‘Q. By Mr. Young: Now, did you have any conversation with Dr. Barham about the three hundred dollars a month that he was paying you at that time? A. Definitely, Mr. Young. He told me that I was to have that for my own personal use, that it wouldn't be touched for anything else.

‘Q. Did he tell you that is what the situation would be after the marriage? A. Absolutely, That was a promise. * * *

‘Q. Now, was anything said at that time as to what he would do about the ownership of the Santa Ynez Ranch? A. Yes.

‘Q. This was before the marriage? A. Before we were married; if I would marry him * * * he would put the place in joint tenancy and if I died before he did it would be left to him and if he died before I did it would be left to me. * * *

‘Q. How soon after you and he were married was it that you went to live at Santa Ynez? A. The day we were married.’

Te deposition of appellant introduced at the trial herein recites the following: ‘Did you have any conversation with Arline C. Barham immediately prior to marrying her regarding the signing of an ante-nuptial agreement? A. Yes. * * *

‘Q. Now, isn't it a fact, doctor, that shortly before marrying her in May of 1945 you asked Arline C. Barham to sign an ante-nuptial agreement? A. I believe so.

‘Q. All right, what did she say to you when you asked her to sign an ante-nuptial agreement in May, 1945? A. She said she had signed so money, she didn't want to sign any more, and I said, ‘All right’.'

From the foregoing, it definitely appears that both appellant and respondent looked upon their remarriage as a new venture and that it was undertaken without qualification as to property rights of either. Moreover, the several contracts executed in connection with the first marriage must be strictly construed (Jones v. Lamont, 118 Cal. 499, 502, 50 P. 766, 62 Am.St.Rep. 251); it being a definite doctrine of the law that ‘courts will not enlarge the language of a postnuptial agreement ‘so to deprive either spouse of such rights unless there is a clear and unmistakable intention to barter them away, and, to reach such conclusion, the contract must be of doubtful interpretation but must, by express terms or by necessary implication, clearly so provide’. Girard v. Girard, 29 N.M. 189, 221 P. 801, 803, 35 A.L.R. 1493.' In re Estate of McNutt, 36 Cal.App.2d 542, 549, 98 P.2d 253, 256. Even a casual examination of the agreements here in question discloses that the parties thereto were contracting with respect to the marriage of October 8, 1928, and to subsequent separations and reconciliations in connection with that marriage alone, and did not at that time contemplate a second marriage and a second divorce.

In the circumstances, the record herein amply supports the interlocutory decree of divorce which adjudges that the agreements entered into between the parties hereto ‘on October 1, 1928, June 28, 1935, November 16, 1936, December 16, 1936, November 1, 1937, December 2, 1937, August 24, 1943, are valid, subsisting and in full force and effect and that the plaintiff is entitled to receive from the defendant, by virtue of said agreements, the sum of $300.00 per month on the first day of each and every month’; and which also adjudges that ‘the said agreements are not binding on this court in awarding support to the plaintiff.’

With respect to the awards made to respondent in the instant action, appellant contends that the award of the homestead was improper because it was taken from the husband's separate property, had a value of $50,000 and was given to the wife for life instead of for life or until her remarriaged.

Section 1238, Civil Code, provides that a homestead may be selected from the separate property of the husband. And, as stated in Greenlee v. Greenlee, 7 Cal.2d 579, 583, 61 P.2d 1157, 1159: ‘Subdivision 4 of section 146 of the Civil Code provides that in divorce actions, if the homestead has been selected from the separate property of either, it shall be assigned to the former owner of such property, subject to the power of the court to assign if for a limited period to the innocent party. * * * The limited period for which the court may assign to the innocent party the homestead selected from the separate property of the other has been held to be for the period of the natural life of the former. Strupelle v. Strupelle, 59 Cal.App. 526, 531, 211 P. 248; Neary v. Godfrey, 102 Cal. 338, 36 P. 655; Hutchinson v. McNally, 85 Cal. 619, 24 P. 1071.’ See, also Litt v. Litt, 75 Cal.App.2d 242, 245, 170 P.2d 684.

The homestead property here in question was originally built by appellant for respondent, and, as heretofore mentioned, they returned there to live on the day of their remarriage, appellant having promised prior thereto ‘to put the place in joint tenancy.’

It was stipulated at the trial that there was an accumulation of community property during the period of the second marriage consisting of a bank balance of $6,836.01, War Bonds having a present valuation of $3,375, and 100 shares of stock valued at $900. The divorce having been granted to respondent on the ground of extreme cruelty, it was within the discretion of the trial court to award her all of the community property.

Appellant urges that ‘Assuming for the argument that the lower court had power to award plaintiff additional moneys for her support other than those specified in the agreement, nevertheless the award of $900 per month was erroneous and excessive and an abuse of discretion.’ Also, that in making such award, the court was unduly influenced by inadmissible testimony concerning the relations of the parties during the period following the first interlocutory decree in August, 1940, and their subsequent remarriage on May 11, 1945.

At the time the award was made, the annual income of appellant was $85,090.57, of which $67,200 was salary, but the monthly support awarded to respondent was only $600 per month, the remaining $300 of the so-called award of $900 being paid to respondent under the property settlement agreements. In her affidavit for support, respondent stated that her monthly expenses were 830, which included salaries for the gardener and housekeeper employed at the Santa Ynez Ranch. Moreover, the record shows that appellant always considered that the monthly payment of $300 under the agreements was for respondent's personal expenses. Under the existing circumstances, it cannot be said that the award of $600 to a wife whose husband earns an annual income of $85,000 is excessive.

With respect to the testimony the admission of which appellant claims resulted in prejudice to him, respondent's counsel explains in his brief that this was offered in an attempt ‘to establish a claim to property accumulated between the divorce and remarriage on the principle that their relationship was the same as in the so-called ‘putative wife cases'.’ However, since the court did not award respondent any property accumulated during said period, the admission of such testimony was not prejudicial to appellant and did not influence the trial court in making the awards herein, as is evidenced by the comment of the trial court in its ruling on appellant's motion to strike out such testimony, i.e., ‘I don't think we will strike it at this time. I don't think it will make any particular difference whether it is in the record or not. The farther we go in it the less all of those collateral, small issues seem to matter in the case as a whole.’

For the reasons stated, those portions of the interlocutory decree of divorce appealed from are affirmed.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.

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