Myhers v. Myhers

Opinion

FLEMING, J.

John Myhers appeals the denial of his motion to discharge of record of a judgment for $37,800 in favor of his ex-wife Freda.

John and Freda, having separated in 1961, executed a separation agreement in 1962. Freda then obtained a Mexican divorce, which in its decree incorporated the terms of the separation agreement. In 1964 John complained for divorce in the Los Angeles Superior Court, and Freda cross-complained for breach of the separation agreement. Subsequently, John dismissed his complaint, and Freda obtained a judgment for $37,800 on her cross-complaint. Thereafter John filed a bankruptcy petition in the United States District Court in which he listed Freda as an unsecured creditor. Freda was notified of the proceeding, but she did not appear nor did she oppose the discharge in bankruptcy which John obtained in February 1967. The sole issue presented by the motion was whether Freda’s $37,800 judgment had been discharged by John’s bankruptcy. (Code Civ. Proc., § 675b.) The judgment would be dischargeable in bankruptcy unless it represented a liability “for alimony ... or for the maintenance or support of wife . . .’’(11U.S.C.A. § 35(a)(2).)

Under the separation agreement John agreed to pay Freda

“for her support and maintenance,

together with all medical,. hospitalization, dental, and any or all other expenses incurred by her, a sum of $300.00 . . . per week ... for a period of . . . (121) months . . .; unless [Freda] remarries or dies prior to said time.” (Italics ours.) Freda agreed that the weekly $300 was to cover all her expenses during the period of the agreement and that John would not become liable to pay any sum in excess of $300 a week. The parties declared that the separation agreement would survive any divorce decree and would not merge with it, that each party released the other from all obligations and rights arising from the marital relationship (including, presumably, the right to support and maintenance or alimony). The $37,800 judgment in favor of Freda was based on 126 unpaid weekly payments accruing under the separation agreement.

John argues that notwithstanding the phraseology in the separation agreement which declared that the weekly payments were for “support and

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