Leach v. Leach

California Court of Appeal Jul 27, 1959 No. Civ. Nos. 18447, 18574Published

Before: Dooling

AI Brief

AI-generated · verify before citing

Holding. A final divorce decree incorporating a property settlement agreement is immune to collateral attack even if it contains provisions that may contravene statutory law. Additionally, a court may properly refuse to entertain a declaratory relief action when the issues can be fully resolved in a pending divorce proceeding.

Issues

Whether a provision in a final divorce decree incorporating a property settlement agreement can be collaterally attacked as violating Civil Code section 711.
Whether a court may sustain a demurrer to a cross-complaint for declaratory relief when the issues are properly determinable in a pending divorce action.

Disposition. Paragraph 2 reversed with directions; judgment on cross-complaint affirmed.

Quotations verified verbatim against the opinion

“The final decree of divorce incorporating the agreement as a part thereof and ordering the parties to comply with its terms has been allowed to become a final judgment and it is not subject to collateral attack.”

“It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties.”

“Where another action is pending in which a party may secure all the relief sought in a declaratory relief action the court may properly refuse to entertain the action for declaratory relief.”

DOOLING, J.

Jeanne Theresa Leach, defendant and cross-complainant in an action for declaratory relief brought by her former husband, has taken two appeals in said action. Since the two appeals present entirely different questions we will treat them separately.

Appeal No. 18574

The parties entered into a property settlement agreement in August' 1956 which was incorporated into the final decree of divorce entered October 11,1957, in the following language:

“It Is Further Ordered, Adjudged and Decreed that the Property Settlement Agreement entered into by the parties

[332]

hereto, dated August 22, 1956, be, and hereby is, made a part of this decree as though it were fully set forth herein, and the parties are hereby ordered to comply with the terms thereof. ’ ’

As a part of the property settlement agreement it was agreed that the family home “shall remain in joint tenancy, and the joint tenancy title to said property is hereby confirmed to the parties hereto.”

Appellant wife was given the exclusive right of occupancy as a residence for herself and children and respondent husband agreed to pay certain expenses in connection therewith. The agreement further provided:

“Neither of the parties hereto shall transfer or dispose of said real property without the consent of the other first had and obtained ...”

By paragraph 2 of its judgment in declaratory relief the court decreed that the last quoted limitation “is void as an unlawful condition in violation of Civil Code; Section 711 ...” The wife appeals and attacks only this portion of the judgment.

We need not determine whether this provision of the property settlement agreement contravened Civil Code, section 711, since it is too late now for respondent to attack its validity. The final decree of divorce incorporating the agreement as a part thereof and ordering the parties to comply with its terms has been allowed to become a final judgment and it is not subject to collateral attack.

Leach v. Leach

AI Brief

DOOLING, J.

More from California Court of Appeal

Related research

AI Brief