In Re Marriage of Carl

California Court of Appeal Feb 25, 1977 No. Civ. 47635Published

Before: Kaus

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Holding. The court held that the parties' prior property settlement agreement was mutually rescinded by their conduct in dismissing the prior dissolution action, but that the trial court erred by failing to treat the wife's nonvested pension as a community asset.

Issues

Whether there was substantial evidence to support the trial court's finding that the 1972 property settlement agreement was rescinded.
Whether a nonvested pension constitutes a community asset subject to division in a dissolution proceeding.

Disposition. affirmed as modified

Quotations verified verbatim against the opinion

“the trial court was entitled to infer that when Jean showed Roger her attorney’s letter and he said nothing to stop her from causing the action to be dismissed, his silence expressed his consent and understanding that the property settlement agreement was cancelled.”

“pension rights “whether or not vested, represent a property interest;” and “to the extent that such rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding.””

[544]

Opinion

KAUS, P. J.

Dissolution action. Roger A. Carl appeals from an interlocutory judgment dissolving his marriage to petitioner Jean Carl. Only the community property is at issue.

Facts

This petition to dissolve the marriage was filed in January 1974. Earlier, in September 1972, the parties had entered into a property settlement agreement

and Jean had filed an earlier petition to dissolve the marriage. Jean was then represented by an attorney who prepared the property settlement agreement. Roger did not have an attorney.

In November 1972, the parties entered into a conditional reconciliation agreement, also drafted by Jean’s attorney. This agreement provided that the reconciliation would not “abrogate or vitiate, ... the validity of the Petition for Dissolution of Marriage heretofore filed and the Property Settlement Agreement heretofore entered into,” unless the parties continued to live together for a period of a year after the date of the conditional reconciliation agreement.

The parties separated again in October 1973. Meantime, in about January 1973, Jean and Roger had discussions concerning the dismissal of the previous action. Roger asked Jean to “have it discontinued, because he could not stand this being held over, and he felt that it was harmful to him, . . . .” Jean phoned her attorney, who sent her a letter which reads:

“[Ejnclosed is an original Dismissal to be signed by yourself where indicated, and return to me. ... [f] You recognize that this completely dismisses the divorce action, and that in the event something occurs in the future, an entirely new action will have to be commenced. This

also completely vitiates the Property Settlement Agreement and is an acknowledgement by you and your husband of a complete

reconciliation.” (Italics added.)

Jean was aware of the language in the letter and understood it. When Jean received the letter from her attorney she showed it to Roger. She then signed and mailed the letter. The first action was dismissed.

In Re Marriage of Carl

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KAUS, P. J.

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