Davis v. Davis

DOOLING, J. pro tem.

This is an appeal by defendant husband from a judgment allowing the plaintiff wife the sum of $60 per month for separate maintenance. The husband pleaded in defense an agreement made and entered into between himself and his wife in March of 1936 wherein she agreed to, waive all further claim upon him for support and maintenance. The court found as to this agreement that it was executed by plaintiff without sufficient consideration and was not voluntarily made by plaintiff, but that she was induced to sign said property settlement agreement by means of duress, and undue influence exercised upon her, and fraud practiced upon her by said defendant.

The chief attack on appeal is upon this finding, appellant claiming that it finds no support in the evidence.

The evidence shows that appellant husband left his wife about November 3, 1935 and left the State of California remaining outside the state until shortly before the execution of the agreement in question, and was not seen again by the wife until after its execution. During his absence from the state and commencing shortly after his departure he engaged in a course of conduct calculated to deprive his wife of all means of support and reduce her to such a necessitous condition that she might more readily agree to the agreement which the court found to be supported by insufficient consideration. About the time of his departure an agreement waiving all of her rights against defendant in consideration of the payment to her of $1,000 and some furniture was forwarded for her signature by her husband’s attorney. This she refused to sign, although she received a letter from her

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husband’s attorney advising her that unless she signed the agreement the funds in a joint account, which was the only source from which she could obtain money during her husband’s absence from the state, would be withdrawn. The bulk of the account was withdrawn by the husband leaving only a trifling amount available to the wife. On November 25, 1935, the husband’s attorney sent a letter to the wife’s landlord that the husband would not longer be responsible for her rent. A similar notice was sent to the store from which she had theretofore purchased food on the credit of her husband and he likewise disclaimed liability for gas and electricity used in her apartment. The husband testified that most of these things were done by his direction. Having thus effectually reduced his wife tó penury while he was outside the state, and she having in the meantime contracted bills for her necessary support, the agreement in question was presented to her for signature. By its terms she was to receive $750. in cash and $2,250 was to be placed in escrow in a designated bank for 30 days, during which time the escrow holder was to pay all bills theretofore contracted by her, and at the end of the escrow period to pay her the balance if any balance remained. As a result she received in cash a little more than $1,600. By the agreement she waived all rights of every kind against her husband or in his property.