Hamilton v. Hamilton

PEEK, J.

This is an appeal by plaintiff wife from a judgment in favor of defendant husband in an action on a promissory note and for money alleged to have been furnished by her to him at his special instance and request.

The present action is the third of a series between the parties, in each of which the wife has been represented by different counsel. The first was an action for divorce filed by her on September 2, 1948. On the same date a property settlement agreement was entered into whereby the husband agreed to assume and pay “an undetermined amount of indebtedness”

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to a number of creditors. The wife waived all right and interest in certain life insurance policies on the life of the husband and further waived any claims she might have against the husband for alimony or support, including any interest in his earnings and estate. The husband on his part waived all interest in the personal property of the parties and executed and delivered to the wife a grant deed covering the community property set forth in the complaint. Shortly thereafter the parties became reconciled and on December 23, 1948, the action was dismissed. But on February 23, 1949, a second action for divorce was instituted, this time by the husband against the wife upon the ground of extreme cruelty and alleged that the parties owned certain community property. He further alleged that his wife was a trained businesswoman capable of supporting herself. By her answer the wife denied generally the allegations of cruelty, alleged that there was additional community property and by a cross-complaint sought the recovery of the sum of $684, represented by a promissory note executed by the husband and delivered to her, and in a second cause of action sought further recovery of the sum of $3,250 alleged to have been her separate property, which she alleged had been converted by the husband to his own use. Her cross-complaint concluded with the allegation that she was without funds to support herself or to prosecute her case and prayed for judgment accordingly. At the conclusion of the trial the court found that by an agreement in writing the parties had settled their respective rights in and to the community property; that the husband had not paid said promissory note; that he had not paid certain indebtedness referred to in the property settlement agreement, and that there was still owing from him “to various and sundry creditors the balance thereof,” all of which he was bound to pay to keep the wife harmless therefrom. The court further found that the husband did not convert the sum of $3,250 to his own use, but that said sum was the amount received from the sale of the community property “which had been disposed of in connection with the Property Settlement Agreement.” The interlocutory decree which was thereafter entered made no mention of the property settlement agreement. It merely provided that the wife was entitled to a divorce, that the husband should pay attorney’s fees and court costs as therein set forth, and that he- should pay the wife alimony in the sum of $100 per month for 24 months. No action was