Sides v. Sides

SHINN, P. J.

Grace Sides brought this action against her divorced husband, Hollis Sides (herein called defendant), and his second wife Jewell. Plaintiff seeks to establish an interest in property alleged to have been concealed from her at the time of her divorce from Hollis and the execution of a property settlement agreement which was approved by the interlocutory decree. Copies of the decree and the agreement were attached to the complaint.

It was alleged that the parties were married September 3, 1930; two children, still minors, were born; plaintiff sued for divorce July 1, 1945; a property settlement agreement was entered into December 31, 1946; an interlocutory decree

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was entered in plaintiff’s favor February 25, 1947, and the present action was instituted January 2, 1952.

The property settlement agreement listed property of the community and contained a representation by each party that the same described all the property which he or she owned or controlled and it provided “in the event property not described herein is disclosed it is agreed that each party is entitled to an undivided one-half interest therein.”

The complaint was in two causes of action. In the first it was alleged on information and belief that at the time of the agreement defendant possessed and had under his control “cash and other properties, according to plaintiff’s information and belief, the exact nature, amount and location of which are unknown to plaintiff but known to defendant Sides (except that plaintiff is informed and believes and therefore alleges the same exceeded $25,000 in value), all of which were their community property and in addition to the community property listed in Exhibit ‘B,’ ” and it was alleged that the ownership of such other property was intentionally and fraudulently concealed from plaintiff, who was deceived thereby. It was also alleged that defendant was a physician; he represented that he was in ill health, he would have to limit his work, he had no source of income except about $14,000 a year from his practice, he had no other assets, was in straitened financial circumstances, substantially indebted, would leave the state and not support plaintiff and the children unless a property settlement was agreed upon, and would have to encumber his properties to meet his obligations under the agreement. It was also alleged that upon various occasions after the agreement was made, the dates of which plaintiff could not recall, defendant represented that he was in straitened circumstances, substantially indebted and that all his properties were encumbered.