Rose v. Rose

BRAY, P. J.

Plaintiff and cross-defendant Iva Lee Rose appeals from those portions of a judgment granting her a decree of divorce relating to the approval of a property settlement agreement and denying her support, and the award to her of only $50 attorney’s fees.

Question Pbesented

Sufficiency of evidence.

Recobd

In her complaint, filed in 1957, plaintiff sought a divorce on grounds of extreme cruelty, alleged the existence of community property believed to be valued in excess of $50,000, and asked that it be awarded to her. Defendant cross-complained for a divorce on cruelty grounds and set up a property settlement agreement executed in 1948 as dispositive of all community property rights. Plaintiff answered, alleging several defenses. The court found against these defenses (they will hereafter be discussed) and held that by reason of the agreement, which it approved, there was no community property, and denied plaintiff’s prayer for support.

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[588]

Property Settlement Agreement

Plaintiff attacked the agreement on several grounds, contending that the agreement was not fair and equitable, that the husband concealed community assets at the time of making the agreement, that thereafter there was a reconciliation of the parties, and an intention to abrogate the agreement, and that the consideration for the agreement failed. Plaintiff devotes herself mainly to rearguing the evidence presented to the trial court and the credibility of the witnesses. On the issues raised there was at best a sharp conflict in the evidence, and under the well known rule this court is bound by the trial court’s resolving of that conflict. The evidence consists mainly of the testimony of the parties, defendant’s present accountant and a former bookkeeper, and the attorney who represented plaintiff in the negotiations for the agreement. Additionally a host of records of defendant’s finances were introduced.

Married in 1930, the parties separated about October 15, 1947. Plaintiff testified that difficulties attributable to defendant arose in the early 1940’s but the precipitating cause of the separation appeared to be plaintiff’s insisting on adopting a baby, Susan, to which action defendant objected. The couple were childless. Plaintiff had an opportunity to obtain Susan for adoption. When she brought the child into the house, defendant left. Since that time the parties have never lived together as husband and wife. In November, 1947, plaintiff filed for divorce. In December, defendant stipulated to an order for fees and support pendente lite. Negotiations between the parties and their attorneys followed culminating in the agreement of September 10,1948.