Cottam v. City of Los Angeles

SCOTT (Robert H.), J. pro tem.

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Defendants appeal from a judgment ordering them to restore to the widow of a deceased police officer pension rights held by her prior to a second marriage which had been annulled before the filing of the instant case.

Parry Cottam was employed by defendant city as a police officer and was killed in the line of duty on May 15, 1950, leaving his widow, Evelyn R. Cottam, the plaintiff, and two minor children: Christian (who was of the age of 12 years when the complaint was filed February 11, 1958), and Dallas (who was of the age of 10 years on that date).

Under the provisions of section 183 of the Charter of the

[524]

City of Los Angeles a widow’s pension was granted to Mrs. Cottam, effective May 17, 1950, in the amount of $204.82, which included $58.52 because of the minor children. This monthly pension was paid to her until December 20, 1954. On that date she married one Elmer T. Berg, with whom she lived until September 5, 1955.

Subsequent to this marriage, the petitioner, then known as Mrs. Berg, was appointed as guardian of the estates of the two children and, effective December 20, 1954, they were awarded a combined monthly pension of $146.30.

Thereafter, the marriage of petitioner to Berg was annulled on the ground of fraud, by a judgment entered May 7, 1956, and petitioner’s former name of Cottam was restored to her. Berg had fraudulently represented that he was able to consummate the marital obligation and relationship, whereas he was psychologically and physically unable to do so, and the marriage was never consummated because of that inability.

On May 18, 1956, Mrs. Cottam applied to defendants for reinstatement of her widow’s pension of $204.82. This was refused. By a temporary cooperative arrangement and without any waiver of defendant’s rights, the pension to the children alone, after a brief interruption, has been maintained.

By judgment in the case now before us, entered June 17, 1959, it was ‘1 Ordered, adjudged and decreed that a Peremptory Writ of Mandate in due form of law be issued, requiring respondents to reinstate petitioner to her pension rights as the widow of Parry Cottam as of May 7, 1956, and to pay to petitioner all benefits which have accrued to her by virtue of said rights since that date, except all sums paid to petitioner as guardian of Christian Cottam and Dallas Cottam, the above named minors, by respondents, from May 11, 1956, until this judgment becomes final, shall be a credit against sums otherwise due to her under the provisions of the decree herein. ’ ’ On appeal, defendant city contends that, under the provisions of section 86 of the Civil Code, the judgment annulling petitioner’s marriage to Berg is not conclusive as to defendant and therefore is not effective as to it. The city also undertakes to speak in behalf of the two children who were named as defendants in this case and who, prior to the judgment herein, were entitled to be paid a pension until each reaches the age of 18 years or marries prior thereto.