Willson v. Burner

GRIFFIN, P. J.

On October 31, 1962, a judgment was entered in favor of defendant. Plaintiff appeals only from the order of October 29, 1962, which is not in and of itself an appealable order. Under the charitable decision in

Evola,

v.

Wendt Constr. Co.,

158 Cal.App.2d 658, 662 [323 P.2d 158], and rule 2(c) of the California Rules of Court, the appeal may be considered from the subsequent judgment entered.

By her complaint, the plaintiff sought to set aside a property settlement agreement between her and her former husband, which agreement had been incorporated in a Nevada divorce decree. The defendant’s general demurrer was sustained without leave to amend on the ground that the Nevada decree was immune from collateral attack in California, under the full faith and credit clause of the United States Constitution (art. IV, § 1).

The facts pleaded must be deemed true for purposes of the demurrer

(Schaefer

v.

Berinstein,

140 Cal.App.2d 278, 288 [295 P.2d 112]). If these facts demonstrate that the Nevada decree was obtained by extrinsic fraud, California may set aside the property settlement agreement and need not recognize the Nevada judgment in this respect.

(Wunch

v.

Wunch,

184 Cal.App.2d 527, 531 [7 Cal.Rptr. 551].)

In her complaint, the plaintiff alleges that the property settlement agreement was executed while the parties were living together as husband and wife, and that the husband concealed and misrepresented the assets of the parties. In

Clark

v.

Clark,

195 Cal.App.2d 373 (hearing denied) [15 Cal.Rptr. 863], Mr. Justice Shepard, writing for this court, carefully reviewed the authorities on this subject and concluded that a husband’s failure to disclose assets in negotiations for a property settlement constituted extrinsic fraud, depriving the wife of the opportunity to litigate her interest in the concealed property, rendering an ensuing judgment subject to collateral attack. At page 379, the court quoted with approval from