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District Court of Appeal, Fifth District, California.

Esther F. LOPEZ, Plaintiff and Respondent, v. Gilbert D. LOPEZ, Defendant and Appellant.

Civ. 424.

Decided: June 28, 1965

Oren, McCartney & Sells and Donald E. Oren, Fresno, for defendant and appellant. Doty, Quinlan & Kershaw, Meux, Gallagher, Baker & Manock and Kendall L. Manock, Fresno, for plaintiff and respondent.

After entry of an interlocutory decree of divorce1 approving and incorporating by attaching a copy and making a part by reference a property settlement agreement, and a final decree of divorce, the plaintiff moved (not under Code of Civil Procedure section 473) in the original divorce action to have set aside both decrees and the agreement on the ground of fraud on the part of defendant. The defendant, who is an attorney at law, appeals from the order granting that motion.

The controversy revolves around the question of the time of termination of alimony payments. The plaintiff contends that she is entitled to receive the sum of $200 per month as alimony until she remarries or until her demise, pursuant to an agreement, stipulation and minute order

The order here under attack had its genesis in a bitterly contested divorce action in which the plaintiff had filed a complaint based upon the grounds of adultery and mental cruelty and ultimately obtained a default interlocutory decree of divorce, but on the grounds of cruelty, though evidence of adultery was introduced.

The plaintiff and defendant were married in 1950 and had one child who was nine years of age at the time of the divorce. Plaintiff instituted an action for divorce; negotiations for settlement of the division of property were unrewarding and the matter was set for trial.

On the date of the trial the attorneys for the respective parties advised Judge Ginsburg that they wanted to enter into a stipulation of record and that unless the stipulation was of record they feared the parties might change their minds. The attorney for the defendant stated to the court that there were large items of community property and the question of custody and support and that lesser details not completely agreed upon would in time be reduced to writing and included in the stipulation. A list of the real and personal property owned by the parties was introduced into evidence and the attorney for defendant detailed at length the division of the property. It was stipulated that the plaintiff have custody of the minor child, with visitation rights on terms to be set out in the written agreement, and regarding support and maintenance, the attorney for defendant stipulated that the plaintiff was to receive the following:

‘MR. HYDE [Attorney for defendant]: * * * In addition thereto, it is stipulated the defendant shall pay as and for support and maintenance of plaintiff herein the sum of $200. per month as and for the support and maintenance of the minor child the sum of $300. per month, making a total of $500. May it be stipulated each of the items may be paid one-half on the first of the month and one-half on the 15th of the month, or may we stipulate those items be broken down weekly?’

The court's minute order made pursuant to the stipulation set forth the various parcels which were to go to the respective parties and further stated:

‘The defendant shall pay the sum of $200 per month on account of support of plaintiff and $300 per month on account of support of the child, payable weekly on the first four Wednesdays of each month.’

It will be noted that there was no termination date for the payment of alimony mentioned in either the stipulation or the minute order.

Thereupon, the matter was continued to be heard as a default matter and the attorney for defendant prepared a rough draft of the property settlement agreement. This was submitted to the defendant personally, and to this draft were added the words ‘or husband,’ so that the final draft of the agreement in the pertinent part read as follows:

‘Husband agrees to pay to Wife for her support and maintenance, the sum of $200.00 per month commencing on the 28th day of November, 1962. Said payments shall continue until such time as said wife or husband shall die or remarry.’ (Italics added.)

The other portions of the property settlement agreement were in line with the stipulation except for some minor items of insurance, which had no value or are of no significance here.

The formal agreement signed by the defendant was obtained by plaintiff's counsel at the office of defendant's attorney during the latter's absence, without discussion. The attorney for plaintiff testified that he read only the provisions for the division of community property and checked the properties therein described against the list which had been used at the time of the stipulation; that he was unaware of the change in the alimony provision. The plaintiff in due time picked up the agreement and she testified that she did not read or see this provision as far as terminating the alimony to her in the case of her husband's remarriage was concerned and that she took the agreement home and put it in the safe deposit box and at all times believed that she was to receive alimony until she remarried or died.

Plaintiff's attorney testified concerning his failure to read the provision providing for alimony, as follows:

‘When we appeared in Court on November 20th, at the time of the trial, and then the subsequent agreement, it was may understanding that the stipulation that was being entered into was setting out the actual agreement that was being drafted. It had been my experience that any time in which there had been any changes ever made in any stipulation by any attorney, that I would be notified as I have done the same myself on several occasions when there had been some change. I therefore assumed that the agreement itself, beasically, was the same as the usual form type of property settlement agreement, and therefore the only real need was to check the property settlement agreement itself as regards the description of the property in case there had been a typographical error and to make certain that we had covered the points that had been covered in the stipulation.’

Plaintiff's attorney further testified:

‘Perhaps you are correct in the ordinary situation where the agreement is being submitted is one in which there is still negotiation going on. I do not feel that that was this case. I feel that this case was a situation of merely reducing to writing the stipulation that was entered into at the time of the February [sic] hearing.’

Still without knowledge of the difference between the stipulation and the written agreement, the matter was heard on the complaint of the plaintiff as a default case, the divorce being granted on the grounds of extreme Cruelty. The defendant was ordered to pay the plaintiff $200 per month for her support and $300 per month for the support of the minor child, payable according to the terms of the property settlement agreement attached thereto and made a part thereof by reference, and the court confirmed, approved and adopted the agreement and ordered the parties to abide by it.

Thereupon, in due course, the defendant on December 6, 1963, obtained a final decree of divorce which incorporated the provisions of the property settlement agreement insofar as custody, child support and alimony were concerned, but included no amounts or dates of termination thereof. After obtaining the final decree the defendant, in that same month, remarried, and refused thereafter to pay any alimony to the plaintiff.

Plaintiff's motion to vacate was heard by the court under its general equity powers, and the court vacated the decrees of divorce and set aside the property settlement agreement.

In a formal order prepared by Judge Ginsburg, who also presided at the time the stipulation was made, he ordered the defendant to pay plaintiff all sums accruing under the provisions of the stipulation which had been entered. In this order the court, in an 8-page document, set forth all the facts in connection with this matter and several informal findings. The trial court quoted Mr. Hyde as saying at the time of the stipulation:

‘I might suggest a further stipulation, that being a further stipulation that upon the reduction of this agreement to writing either party might apply to the Court for default hearing in this connection.’

The court also set forth that the defendant was an attorney at law with many years' experience, that he had handled many divorce matters, that he was personally present in court at the time the stipulation was made, that the court specifically found that the defendant did not testify truthfully in stating that he was under the impression that the stipulation related to temporary alimony rather than to permanent alimony, that he was well aware of the nature of the hearing of May 22, 1964, which was the hearing at which the stipulation was entered into, and the nature of the stipulation and of the difference between temporary and permanent alimony. Furthermore, the court found that Mr. Hyde had testified that it was his custom and was the custom of attorneys in general to recite by letter of transmittal any changes that had been made when an oral agreement was reduced to writing, but admitted there had been no discussion with plaintiff's attorney nor did he send any letter of transmittal or point out the change in the agreement. The court found that the plaintiff was under nervous strain due to the adulterous acts of the defendant and had no reason to believe other than that the alimony would be permanent inasmuch as there had never been any discussion along these lines and she had been present in court when the stipulation was entered into and that payment of alimony was a moving consideration for her in view of her relative youth and health.

The court further stated that all of these facts were known to the defendant and he had this in mind when he made this change in paragraph 16 of the property settlement agreement.

The court also took judicial notice that it is usual to have a provision in the agreement for support of the wife until she dies or remarries, but that it is not customary or usual for such limitation concerning the remarriage of the husband and that the testimony of the attorneys in this cause, excluding the defendant, and the court's own knowledge of such things are that such a limitation is extremely rare and unusual and unlikely to be anticipated by an attorney examining a property settlement agreement.

The court also stated that Mr. Hopper, plaintiff's trial counsel, was justified in relying on a stipulation made in open court, and quoted language set forth in volume 46 California Jurisprudence 2d, section 2, page 2, as follows:

‘Although sometimes used synonymously with ‘contract’ or ‘agreement,’ the term ‘stipulation’ as used in practice means an agreement entered into by attorneys in the form required by law, relating to some matter incidental to an action or proceeding. Such a stipulation made out of court constitutes an agreement between the parties, and when made in open court it constitutes not only an agreement between the parties, but also one between them and the court, which the court is bound to enforce for the benefit of those interested and for the protection of its own honor and dignity.' (Italics added.)

It was also the opinion of the court that the defendant in making the change on the rough draft anticipated that there would be the usual negotiations between the attorneys and that if this addition were not discovered the defendant would gain a fraudulent, unfair and unconscionable benefit, but if it failed, then the defendant would still be bound by the original terms of the stipulation entered into in open court.

The motion by the plaintiff was not brought under section 473 of the Code of Civil Procedure, but was addressed to the general equitable powers of the court. This procedure is available. (Cowan v. Cowan, 72 Cal.App.2d 868, 166 P.2d 21; Perez v. Perez, 111 Cal.App.2d 827, 245 P.2d 344; Skouland v. Skouland, 201 Cal.App.2d 677, 20 Cal.Rptr. 185; and Preston v. Wyoming Pac. Oil Co., 197 Cal.App.2d 517, 526–527, 17 Cal.Rptr. 443; Raps v. Raps, 20 Cal.2d 382, 125 P.2d 826; 16 Cal.Jur.2d, § 147, p. 439; § 142, p. 432.) No findings of fact and conclusions of law are required on an order made after a motion. (Beckett v. Kaynar Mfg. Co., Inc., 49 Cal.2d 695, 321 P.2d 749; Skouland v. Skouland, supra, 201 Cal.App.2d at p. 679, 20 Cal.Rptr. 185; Perez v. Perez, supra, 111 Cal.App.2d at pp. 829–830, 245 P.2d 344.)

In this particular case the trial court did in effect made informal findings in connection with its single document which we have quoted above in making its order. The trial judge apparently intended the single document to be informal findings and order.

Extrinsic fraud or mistake can serve as the basis for vacating a final judgment not void on the face of the record. In Westphal v. Westphal, 20 Cal.2d 393, 397, 126 P.2d 105, 107, the court siad:

‘Fraud or mistake is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court. [Citations.] If an unsuccessful party to an action has been kept in ignorance thereof [citations] or has been prevented from fully participating therein [citation], there has been no true adversary proceeding, and the judgment is open to attack at any time. A party who has been given proper notice of an action, however, and who has not been prevented from full participation therein, has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary. [Citations.] Fraud perpetrated under such circumstances is intrinsic, even though the unsuccessful party does not avail himself of his opportunity to appear before the court. Having had an opportunity to protect his interest, he cannot attack the judgment once the time has elapsed for appeal or other direct attack. [Citations.]’

To the same effect are Howard v. Howard, 27 Cal.2d 319, 321, 163 P.2d 439; Burch v. Hibernia Bank, 146 Cal.App.2d 422, 304 P.2d 212; and Smith v. Smith, 125 Cal.App.2d 154, 163, 270 P.2d 613.

The court has inherent power to set aside its judgment at any time when it has been obtained through extrinsic fraud, mistake, or accident which deprives the unsuccessful party of an opportunity to present the case to the court. In Bacon v. Bacon, 150 Cal. 477, at pages 490–492, 89 P. 317, at pages 322, 323, the court said:

‘The general rule as to what constitutes extrinsic fraud or mistake is clearly stated by the United States supreme court in United States v. Throckmorton, 98 U.S. [61], 65, [25 L. Ed. 93]. After stating the general rule that a bill in equity will not lie to set aside a judgment obtained by means of perjured testimony, or forged documents, introduced in evidence in support of a contested issue of fact, that court says: ‘But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to the suit, there was, in fact, no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced upon him by his opponent, as by keeping him away from court; a false promise of a compromise; or where the defendant had never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interests to the other side—these, and similar cases which show that there never has been a real contest at the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside the former judgment or decree and open the case for a new and fair hearing.’

‘This statement was approved by this court in Pico v. Cohn, 91 Cal. [129], 135, 25 P. 270, 27 P. 537, [13 L.R.A. 336, 25 Am.St.Rep. 159]. These cases refer to fraud as the preventing cause of the real contest, adversary trial, or fair submission. The cases related to fraud, and hence the discussion was confined to that subject, but the rule is the same where the preventing cause is mistake, influencing the action or inaction of the injured party. [Citations.]

‘The gravamen of the rule thus expressed lies in the fact that ‘the unsuccessful party has been prevented from exhibiting fully his case,’ and, consequently, that there has been ‘no adversary trial or decision of the issue,’ no ‘real contest at the trial,’ or, as stated in Pico v. Cohn, no ‘fair submission of the controversy.’ Where the unsuccessful party has been thus hindered he is not to be refused relief on the ground that the fact on which his defense or claim in the original action depended, and by which he expects to bring about a different result in the new suit for equitable relief, was technically in issue in the original action or proceeding, or was necessarily decided by the court in that action and concluded by the original judgment beyond reach on collateral inquiry. It is because such judgment does conclude all parties so long as it stands unrevoked and unaffected by any direct attack, not only as to the facts actually in issue, but also as to all facts not in issue, but which might constitute a possible defense, and is therefore injurious, that there is ground for the interposition of equity to give this form of relief. To deny relief where the fact is technically in issue, though, by reason of the mistake or fraud, not controverted or contested at the trial or hearing, would be to destroy the equitable remedy in a large class of cases in which it has been hitherto administered.'

The defendant contends that the plaintiff was negligent in not examining the agreement and that one's own negligence bars a right to relief from extrinsic fraud. (Wattson v. Dillon, 6 Cal.2d 33, 56 P.2d 220; Wilson v. Wilson, 55 Cal.App.2d 421, 130 P.2d 782; Hosner v. Skelly, 72 Cal.App.2d 457, 164 P.2d 573). Each of these cases contains a statement to the effect that if negligence of the complainant permitted the fraud to be practiced or the mistake to occur, equity will deny relief. Plaintiff points out, however, that in each of these cases there was no fraud, whereas, in the present situation the trial court found fraud on the part of the defendant.

In the Wattson case, 6 Cal.2d at page 40, 56 P.2d 220, the court points out that it is not pretended that the relief was sought on the ground of fraud, which was not pleaded nor was evidence adduced thereon. In that case the ground for seeking relief was clearly mistake.

In the Wilson case, 55 Cal.App.2d at page 426, 130 P.2d 782, the court said that it was apparent that the respondent was in no way to blame for the nonappearance of appellant, and thus the case did not involve fraud, extrinsic or intrinsic, or mistake on the part of respondent.

In the Hosner case, 72 Cal.App.2d at pages 461–462, 164 P.2d 573, the court expressly ruled out the ground of extrinsic fraud, stating that the complainant did not allege that he was prevented from making an appearance in the divorce action, but only alleged that he failed to appear because he believed in and relied upon defendant's promise made before the action was filed.

As to the argument that the negligence of one's counsel furnishes no basis for an attack upon a final judgment, as set forth in Preston v. Wyoming Pac. Oil Co., supra, 197 Cal.App.2d 517, 17 Cal.Rptr. 443, plaintiff relies upon the holding in Hallett v. Slaughter, 22 Cal.2d 552, 140 P.2d 3, and Soule v. Bacon, 150 Cal. 495, 89 P. 324. In Hallett, the plaintiff's attorney and the attorney's secretary testified that they had served and filed an answer by mail, but it was not received by the clerk or by opposing counsel. After six months, plaintiff's salary was levied upon, and a suit in equity was filed seeking to set aside the default judgment, which was opposed by the defendants who charged that negligence, laches, and want of diligence of the plaintiff precluded the granting of relief. The Supreme Court rejected the argument, stating that it was met by the findings of the trial court to the contrary, and said at page 556 of 22 Cal.2d, page 6 of 140 P.2d:

‘Although some degree of negligence may be charged to the attorney employed by this plaintiff to defend her in the municipal court action in not sooner discovering that plaintiff's answer had not been filed, we are not prepared to say that his remissness in this regard amounts to such inexcusable neglect as a matter of law that plaintiff should be foreclosed of her right to maintain this suit. * * * We are in accord with the following views set forth in Soule v. Bacon, 1907, 150 Cal. 495, 497–498, 89 P. 324, 325: ‘There are many cases holding that the party may have relief in equity from the consequences of his mistake of fact, although he was somewhat negligent in making the mistake, if his negligence in no way prejudiced the opposing party. [Citations.] * * * At most, it was a question of fact for the court below to determine whether or not the lack of vigilance on the part of the plaintiff was such as would not have occurred with a man of ordinary care and prudence, under the same circumstances. That court has decided the question in favor of the plaintiff, and we are satisfied with its conclusion.’'

The Soule and Hallett cases were relied on in the case of Bartell v. Johnson, 60 Cal.App.2d 432, 140 P.2d 878, an action in equity to set aside a default judgment where the attorney had written his client, ‘I won in your case on appeal.’ The appellate court reversed the judgment on the basis of Soule and Hallett, saying:

‘We are convinced that the quoted portion from Soule v. Bacon, supra, is equally applicable to the facts pleaded in this case, and that the question whether the plaintiff in the instant action is entitled to relief in equity as a consequence of his mistake of fact is a question of fact for the court below to determine, and the majority holding in Hallett v. Slaughter, supra, is controlling in the instant case.’ (P. 437, 140 P.2d p. 881.)

(See Tieso v. Tieso, 67 Cal.App.2d 872, 155 P.2d 659.)

In Turner v. Allen, 189 Cal.App.2d 753, 11 Cal.Rptr. 630, the plaintiff's attorney answered a complaint in behalf of plaintiff's corporation but failed to answer for the plaintiff personally. Relief was granted in an independent equitable action in which the trial court found that in dictating the answer the attorney inadvertently and by ‘mistake of fact’ and ‘extrinsic accident’ failed to identify the plaintiff in the pleadings. At page 757, 11 Cal.Rptr. at page 632 of the opinion the court said:

‘As his first proposition, appellant asserts that ‘extrinsic fraud is the only ground for attacking in equity a final judgment of a court having jurisdiction over person and subject matter, if time for appeal or other direct attack has expired’ (emphasis added). Such is not the law. Rather recently, in Galper v. Galper, 1958, 162 Cal.App.2d 391, 397, 328 P.2d 487 [490], we had occasion to observe that “extrinsic accident and mistake of fact' may, in some situations, be a proper basis for the exercise of the court's equitable jurisdiction to vacate a default judgment'; it was also there said that ‘whether such a condition exists is a question of fact depending entirely upon the particular circumstances in each case.”

Further, at pages 759–760, 11 Cal.Rptr. at page 633, the court said:

‘The trial judge characterized respondent's mistake as in ‘the nature of a clerical mistake’ on the part of Mr. Deukmejian or his secretary; drawing on his years of experience as a practicing attorney, ‘it still was the type of negligence that all of us who have practiced law have been guilty of at times when we have read over what has been dictated and the girl had written and we failed to find that she had written something, or a word or two different than that which we had dictated.’ We conclude that the determination below, rationalized as above may not be disturbed.'

Statements of a like character are contained in Davis v. Davis, 185 Cal.App.2d 788, 8 Cal.Rptr. 874, where it was held that it is unnecessary to make out a case of intentional fraud; that ‘The basis of equitable relief in these cases, whether it be denominated ‘extrinsic fraud’ or ‘extrinsic mistake,’ is that which has resulted in a judgment taken under circumstances of unfairness and injustice without affording a party the opportunity to participate in the proceedings.' (P. 794, 8 Cal.Rptr. p. 878.)

Whether by reason of deliberate fraud on the part of the defendant or merely the failure of plaintiff or her attorney to detect the existence of the two words ‘or husband’ inserted in the support provision, the plaintiff was nevertheless deprived of a fair submission of the issue of alimony to the court and consequently there has been no fair adversary trial or decision of the issue involved. The complaint was based on adultery and cruelty; it appears from the record that the defendant and his cousin had two illegitimate children, that the plaintiff knew that he intended to remarry as soon as possible and that the defendant did in fact obtain the final decree on the first date possible and immediately remarried. The trial judge, from his own experience and the testimony of the attorneys, found that a provision terminating alimony payments on the remarriage of the husband is highly unusual and unlikely to be anticipated by an attorney examining a property settlement agreement, where the attorneys had dealt with each other on an amicable basis in the past, and that such additional language to an existing agreement would normally be pointed out to opposing counsel by the one making the change. Even if the agreement had been read, the two words inserted in a provision otherwise standard in such agreements could have been easily missed. Section 139 of the Civil Code provides that unless otherwise agreed by the parties in writing, an obligation of support terminates upon the death of the obligor or upon the remarriage of the other party. No provision is embodied therein for the termination of the obligation upon the remarriage of the obligor.

In our search through textbooks and cases we have found no mention of an agreement which terminates the obligation of the obligor to pay alimony on his remarriage. Remarriage is discussed in volume 17, American Jurisprudence, Divorce and Separation, section 703, page 754, and in volume 16, California Jurisprudence 2d, section 220, page 515.

In Seeger v. Odell, 18 Cal.2d 409, 115 P.2d 977, 136 A.L.R. 1291, it was held that failure of the plaintiff to examine public records was no bar to recovery. In Security-First Nat. Bank v. Earp, 19 Cal.2d 774, 122 P.2d 900, failure to read a contract was held to be no bar to reformation where plaintiffs relied on the representation that they were signing a renewal of an old mortgage which in fact added other obligations. In Van Meter v. Bent Construction Co., 46 Cal.2d 588, 297 P.2d 644, the plaintiff's failure to read a construction contract was held not to bar reformation. In Tieso v. Tieso, supra, 67 Cal.App.2d 872, 155 P.2d 659, reformation of a property settlement agreement was affirmed. There, the evidence supported a finding that it had been agreed that the husband should pay all income taxes through a certain year, and by mistake the agreement did not actually so provide. By the mistake of plaintiff's attorney the words ‘second party’ were left out of the agreement to pay the community share of certain income taxes. It was urged that the respondent was barred by her own attorney's negligence in not noticing the mistake in the agreement as written. The court said at page 877, 155 P.2d at page 662:

‘Whether the failure to discover a mistake in a written document is inexcusable negligence so as to bar a party from the right to reformation is a question of fact for the trial court.’

In the case before us while even if there was no fraud, which we believe there was, there certainly was a mistake which prevented the plaintiff from having an adversary hearing on the issue of permanent alimony. If there is evidence to support the order on either ground, it is not an abuse of discretion and must stand. (Turner v. Allen, supra, 189 Cal.App.2d 753, 11 Cal.Rptr. 630; Wilson v. Wilson, supra, 55 Cal.App.2d 421, 432, 130 P.2d 782.)

The defendant contends that the stipulation which was made in open court was not a contract; that there was no stipulation for a judgment and that there was a mere outline with some things left for future determination; and that the court was unable to make a contract for the parties. All of these arguments are contrary to the record. The defense counsel, himself, advised the trial court that they wanted to get the stipulation of record as to all matters agreed upon so that the parties would not change their minds. He also suggested a further stipulation: ‘[t]hat upon the reduction of this agreement to writing either party might apply to the court for default hearing in this connection.’ He also stated that any matters left open were ‘only matters that are minor.’ The trial court believed and expected that the matters actually settled by the stipulation were complete agreements, and made a minute order accordingly. That order provides: ‘The defendant shall pay the sum of $200 per month on account of support of plaintiff * * *.’ No termination date is mentioned. The same trial court presided over the hearing taking this stipulation as at the hearing on the motion to vacate. At the hearing on the motion, the record shows the following:

‘Q. (THE COURT) * * * Let me put it to you this way, Mr Hyde: Do you recall that you or Mr. Hopper, or both of you stated that the parties had reached an agreement?

‘A. Yes.

‘Q. Do you recall that you stated that you wished to make a stipulation of record for the reason that this had been a long and bitterly fought case?

‘A. That's correct.

‘Q. And for that reason that if you didn't make the stipulation of record, you were both concerned that the clients might change their minds?

‘A. That is correct, your Honor, words to that effect.

‘Q. Yes. As a matter of fact, if that had not been the statement, there would have been no reason for putting this stipulation of record at all at this time, is that correct?

‘A. I think that is correct.’

Further, upon questioning by the court, Mr. Hyde, counsel for defendant, testified that, based upon his experience in the practice of the law in Fresno County he would not say that a provision in a property settlement agreement that alimony terminates upon the remarriage of the husband is a usual and ordinary provision. The fact that Mr. Hyde, in drafting the agreement did not include a provision that the support payments would terminate upon the remarriage of the defendant is at least some indication that he considered the stipulation to be binding.

Up to the date of the stipulation in open court the matter had been vigorously contested. After such stipulation was made, the defendant abandoned his defense and agreed that the matter might he heard as a default matter and we certainly believe that this indicates that the defendant believed that a complete agreement had been reached on the basic issues which had been long in dispute. Further, as an attorney, he knew, or is charged with the knowledge, of the binding effect of a stipulation entered into in open court in the presence of the litigants.

In Rich v. Silver, 226 Cal.App.2d 60, 37 Cal.Rptr. 749, the parties stipulated through counsel that certain joint tenancy property should be converted into tenancy in common. This court held that the stipulation entered into in open court voiced by the attorneys in the presence of the litigants was binding.

Stipulations are also discussed in Linder v. Cooley, 216 Cal.App.2d 390, at page 395, 31 Cal.Rptr. 271, at page 274, where the court said:

‘In Webster v. Webster, 216 Cal. 485, [at page 489], 14 P.2d 522, [at page 523], the Supreme Court said: ‘Such a stipulation made in open court constitutes ‘not only an agreement between the parties but also between them and the court, which the latter is bound to enforce, not only for the benefit of those interested, but for the protection of its own honor and dignity.’'

‘Substantially the same language appears in Barendregt v. Downing, 175 Cal.App.2d 733, 736, 346 P.2d 870.’

Stipulations are also discussed in volume 12, California Jurisprudence 2d Contracts, section 26, pages 218–219, as follows:

‘When it is part of an understanding between the parties that the terms of the contract are to be reduced to writing and signed by them, there is no binding agreement until the written contract is signed. * * *

‘This does not mean, however, that a contract already reduced to writing and signed, is of no binding force merely because it contemplates a subsequent and more formal instrument as the repository of its terms. Neither does it mean that, when the parties have orally agreed on all the terms and conditions of a contract with the mutual intention that it shall thereupon become binding, the mere fact that a formal written agreement to the same effect is to be prepared and signed alters the binding validity of the original oral agreement. Furthermore, a contract to make or execute a written agreement, when in all respects the terms thereof are mutually understood and agreed upon, is as valid and obligatory, where no statutory objection interposes, as the written contract would be if executed. Under such circumstances, neither party is at liberty to refuse to perform.’

It is noted that the supporting affidavits and the oral evidence all disclose that the motion to vacate the decrees of divorce and the property settlement agreement was not in effect intended to restore an unworkable marriage relationship, but the claim of fraud was directed exclusively to the property settlement agreement and the support aspects of the decrees. The fraud found by the court was obviously not relating to any question of whether the marital relationship should have been dissolved or whether it should now be restored. The defendant argues that the order under inquiry was in excess of the court's jurisdiction because any such relief necessarily ignores the concept of divisible divorce. That a decree of divorce is divisible from other issues incident to the dissolution of a marriage is now well established. The cases of Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572; and Hudson v. Hudson, 52 Cal.2d 735, 344 P.2d 295, recognize the divisibility of ex parte foreign decrees of divorce from decrees for the payment of alimony. The cases of May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, and Chichester v. Chichester, 228 Cal.App.2d 491, 39 Cal.Rptr. 553, apply the concept of the divisible divorce to child custody cases. Hull v. Superior Court, 54 Cal.2d 139, 147, 5 Cal.Rptr. 1, 352 P.2d 161, severs the divorce decree from provisions of the judgment relating to the division of property. In the last cited case at page 145, 5 Cal.Rptr. at page 4, 352 P.2d at page 164 the public policy of this state is expressed thusly:

‘The trial court, in the present case, has barred the entry of the final decree for what, at most is a mere breach of contract. To countenance such a procedure would be violative of the public policy of this state. That policy is not to discourage final and permanent severance of marriages that have failed. It has been stated that: ‘* * * when a marriage has failed and the family has ceased to be a unit, the purposes of family life are no longer served and divorce will be permitted. ‘[P]uplic policy does not discourage divorce where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed.’ [Citing cases.]' DeBurgh v. DeBurgh, 39 Cal.2d 858, at page 864, 250 P.2d 598, at page 601. The public interest is not enhanced by refusing people the right to legally terminate a relationship which has already been irrevocably severed in fact.'

The court further said at page 146, 5 Cal.Rptr. at page 5, 352 P.2d at page 165, that in the case of DeBurgh v. DeBurgh, 39 Cal.2d 858, at page 864, 250 P.2d 598, it was said that ‘enforced continuation of a relationship which has been destroyed could serve no useful public policy but would, instead, serve to foster adulterous associations as well as intensify ‘the oppressive effect upon children and the community * * *’ 39 Cal.2d at page 864, 250 P.2d at page 601.'

The divisible concept of divorce decrees is discussed in the cases of Hull v. Superior Court, supra, 54 Cal.2d 139, 5 Cal.Rptr. 1, 352 P.2d 161, and Hudson v. Hudson, supra, 52 Cal.2d 735, 344 P.2d 295. In the Hudson case, the court approves the doctrine of divisible divorce as engendered by foreign ex parte divorces. Appellant argues that while the Hudson case deals with foreign ex parte cases, the principle of that case should be fully applicable here. However, in Hudson, at page 744, 344 P.2d at page 300, the court states: ‘The broad proposition of the Dimon case [Dimon v. Dimon, 40 Cal.2d 516, 254 P.2d 528] that alimony cannot be granted if the marriage has been dissolved cannot be denied, if the marriage was dissolved in this state and the court had jurisdiction over both spouses.’ However, the Dimon case was overruled with reference to foreign ex parte cases, as set forth on page 745, 344 P.2d 295 in the Hudson opinion. (See also Perini v. Perini, 225 Cal.App.2d 399, 408–409, 37 Cal.Rptr. 354.)

In the present matter, if we should reinstate the interlocutory decree and the final decree and affirm the vacating of the property settlement agreement, the plaintiff would have two decrees without any alimony arrangements and jurisdiction would thus be lost as far as fixing any alimony is concerned, under the Hudson case. In such case, the status of the action would be this: The marriage would be dissolved by decrees now final and immune from attack in an action for divorce brought in this state, personal jurisdiction over both spouses present, and there would be no vehicle available to the plaintiff within which to have her right to an alimony award adjudicated.

We affirm the lower court's judgment setting aside the interlocutory and final decrees and the property settlement agreement, and allow the trial court to retain jurisdiction over the entire subject and particularly the support of the plaintiff. Thus, the award of temporary support of the plaintiff remains in full force and effect until changed by further order of the court. The judgment is affirmed.


1.  ‘IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant pay to plaintiff as and for her support the sum of $200.00 per month and the further sum of $300.00 per month as and for the support of the minor child of the parties, said sums payable according to the terms of the property settlement agreement attached hereto and made a part hereof by reference.

FOOTNOTE.  ‘IT IS FURTHER ORDERED, ADJUDGED AND DECREED that that certain property settlement agreement dated November 27, 1962 between the parties, introduced into evidence by plaintiff, a copy of which is attached hereto and made a part hereof by reference, is hereby confirmed, approved and adopted by this court and made a part of this judgment and both plaintiff and defendant are hereby ordered to abide by and perform the terms of said agreement.’ in the divorce action; while the defendant contends that the alimony payments terminated upon his remarriage pursuant to the written property settlement agreement incorporate in the decree.

RALPH M. BROWN, Justice.

CONLEY, P. J., and STONE, J., concur.