DIETRICH v. DIETRICH (1964)

Upon petition for rehearing, appellant argues, inter alia, the contention that if the $694,000 which he is to receive under his agreement with the Hughes Tool Company is not to be regarded as ordinary income for future services (as he has maintained throughout this proceeding), then some unspecified portion of it must be attributable to the various minor items he had included in the complaint he had filed in his action against Hughes and the Hughes Tool Company in addition to his principal demand therein for $1,000,000.

While a passing reference to this matter was made in appellant's opening brief under the titles ‘Statement of the Case’ and ‘Statement of Facts', the brief contained no further discussion or argument concerning the subject. It was raised for the first time as a point on appeal in appellant's closing brief. In accordance with the familiar rule, the point was disregarded by this court in its initial opinion. (Bank of America v. Frost, 205 Cal.App.2d 614, 619, 23 Cal.Rptr. 441, and cases cited.)

Appellant neither urged the trial court to attempt such a segregation of considerations nor introduced any evidence thereon. In his answer to respondent's complaint, appellant took the following position, which he maintained throughout the trial and upon this appeal, until the filing of his reply brief:

‘Defendant further alleges that the proceeds in which plaintiff seeks to participate are for services by the defendant on and after August, 1959, as the result of a contract entered into on or about that date, none of the provisions of which contract was contemplated by either of the parties hereto nor by the parties to the said contract at the time of the Property Settlement Agreement of June 1, 1954.’ (Emphasis added.)

If, in truth and in fact, and contrary to appellant's contentions throughout, the agreement with the Hughes Tool Company was in part a settlement of a claim against the defendants asserted in his prior action and in which his wife was entitled to share, and in part a settlement of lesser claims in which she was not entitled to share, appellant wholly failed to show what, if any, consideration was given to the proportionate value of these latter items. The trial court, however, in its attempt to insure complete fairness to appellant, did consider this possibility, and its findings indicate that such consideration formed the basis of its decision to deny respondent the attorneys' fees to which she otherwise would have been entitled under the terms of the property settlement agreement. Under the circumstances created by appellant's own determination to defend this action in the manner which he himself adopted, such resolution by the trial court was abundantly fair to appellant and effected a benefit to him that was in nowise prejudicial.

All other arguments made by appellant in his petition for rehearing are repetitive of those heretofore made, and each of them has been fully considered by this court in reaching its original decision herein.

Rehearing is denied.

PER CURIAM.