Makzoume v. Makzoume

California Court of Appeal Feb 27, 1942 No. Civ. 11997Published

Before: Nourse

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Holding. The trial court erred by failing to definitively rule on the parties' property settlement agreement and by failing to award alimony despite evidence of the husband's ability to pay and the wife's need. The case is remanded for the trial court to resolve the status of the agreement and the alimony claim.

Issues

Whether the trial court erred in failing to confirm or reject a property settlement agreement in a divorce decree.
Whether the trial court abused its discretion by failing to award alimony despite evidence of the wife's need and the husband's ability to pay.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The record fails to disclose any reason why the agreement should not have been approved.”

“There was thus a sufficient showing to entitle plaintiff to some award in the nature of alimony, and no showing to the contrary.”

“A judgment must be definitive. By this is meant that the decision itself must purport to decide finally the rights of the parties upon the issue submitted”

NOURSE, P. J.

Plaintiff sued for divorce on the grounds of cruelty, and prayed for the custody of the minor child of the marriage, for an award for support and maintenance of the minor child, and for alimony for herself, all in accordance with the terms of a prior separation agreement and property settlement. The defendant defaulted and a trial was had upon the complaint. All the material allegations of the complaint were proved and the separation agreement was received in evidence. The trial court entered an interlocutory decree upon the grounds alleged, awarded plaintiff custody of the child, made provision for its maintenance, but did not specifically mention the agreement of the parties, and made no provision for the support of the plaintiff. The latter has appealed from that portion of the decree failing to confirm the property settlement agreement and failing to award her any alimony. The respondent does not contest the appeal.

The agreement in evidence made a division or adjustment of the respective rights of the parties in both community and separate property. It is specially authorized by section 159 of the Civil Code. When such agreements are not procured through fraud, undue influence, or coercion, they are highly favored in the law.

(Hensley

Hensley, 179

Cal. 284, 287 [183 Pac. 445].)

Having pleaded and proved the agreement, the appellant waived her claim to an adjustment of the respective rights in the community property, and asked for alimony in the sums agreed upon. If the agreement is to be ignored the community property should be awarded appellant in accordance with the provisions of section 146 of the Civil Code. The record fails to disclose any reason why the agreement should not have been approved.

In all actions of this character the matter of awarding

[231]

the innocent spouse alimony is left in the first instance to the discretion of the trial court. (Sec. 137 of the Civ. Code.) But this discretion is not arbitrary. “. . . it must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities, and the financial ability of the husband. ... In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason,—all the circumstances before it being considered. ’ ’ (1 Cal. Jur. 965.)

Makzoume v. Makzoume

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NOURSE, P. J.

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