Crossley v. Crossley

DRAPEAU, J.

Plaintiff and defendant were married March 28, 1942. It was a stormy marriage. They would quarrel and. one would leave the other; then they would make up and resume marital relations. Once their disagreement went so far that defendant got a divorce from plaintiff. But they made it up once more. Finally came the last quarrel, and they separated for good September 2, 1947.

[628]

At the time of the marriage plaintiff owned nine liquor stores—or, rather, California cocktail bars or cafés, where liquor is served and sold, state law requiring that food also be served. The cafés were good money makers, especially during the second World War.

The husband and wife entered into two property settlement agreements. The first agreement was terminated by mutual consent and agreement just after the divorce and reconcilement above mentioned. Whether the second agreement is valid and binding is the principal question in this appeal.

Plaintiff brought his action for divorce; defendant cross-complained ; trial was had for a number of days; the court found mental cruelty of the plaintiff toward the defendant, and awarded her a divorce on her cross-complaint. No one complains of this.

The court found further that the second property agreement was valid and binding; that it was not the result of fraud or duress of plaintiff to defendant, and that she was not entitled to support and maintenance. Interlocutory judgment followed accordingly.

Defendant appeals from those portions of the interlocutory judgment as to the property agreement, as to support and maintenance denied defendant, and, on the ground of inadequacy, as to $3,500 for her counsel fees.

In support of her contention that the property agreement was procured by fraud and. duress defendant argues: That she and her husband lived together without the formality of a marriage ceremony from September 29, 1940, until their marriage in 1942; that the plaintiff had an infant daughter by a prior marriage, about eight months old when the parties began to live together; and that defendant always gave to this child care, and love, and affection. She also contends that she was coerced into signing the property agreement by threats of plaintiff that he would take the child away from her, and by her desire to maintain a home and peaceable relations with him. Such threats were denied by plaintiff. And there is no persuasive evidence of fraud or misrepresentation in the inception of the contract.