Taliaferro v. Taliaferro

California Court of Appeal Apr 19, 1960 No. Civ. 18649Published

Before: Kaufman

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Holding. The court affirmed the denial of the appellant's motion to modify the divorce decree, finding that the issues raised had been previously adjudicated and that the appeal was frivolous.

Issues

Whether the trial court erred in denying a motion to modify a divorce decree regarding property settlement provisions.
Whether the order of September 16, 1949, vacating a prior modification order was void.
Whether the appellant's repeated attempts to relitigate settled matters constitute a frivolous appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In view of the above, there can be no question that appellant’s motion was properly denied by the trial court.”

“the respondent here has been needlessly harassed and the courts unduly burdened by repeated attempts to relitigate matters that have long been finally determined.”

“the sum of $250 be assessed against the appellant as a penalty and added to the costs for taking a frivolous appeal.”

[45]

KAUFMAN, P. J.

Eugene A. Taliaferro appeals from an order denying his motion for modification of the final decree rendered in the divorce action between the parties (No. .29810), filed in the Superior Court of Contra Costa County on September 7, 1943. The motion was denied on June 18, 1958, by the Superior Court of Contra Costa County on its merits as well as for the reason that the matters and issues tendered by the motion had already been adjudicated. By his motion made on February 24, 1958, appellant sought to strike paragraph Seven from the decree on the ground that it contained a provision for alimony which terminated on the remarriage of the respondent and the emancipation of the children. On appeal, it is argued that the motion should have been granted because: (1) The order of September 16, 1949, vacating the modification order of June 22, 1949, was void as a collateral attack on a final judgment; (2) The order of June 22, 1949, modifying the decree of divorce was a final judgment which could not be attacked collaterally; (3) The complaint in actions Nos. 46893 and R-3205 did not state a cause of action and the judgments in those actions were void for lack of jurisdiction.

This action is another in the series growing out of the divorce action between the parties. Justice and the equities of the case require us here to take judicial notice of the prior proceedings.

(Taliaferro

Taliaferro,

178 Cal.App.2d 140, 141-142 [2 Cal.Rptr. 716].) The interlocutory decree was entered on January 3, 1944, and the final decree on January 10, 1945. A property settlement agreement made by the parties on December 1, 1943, was made a part of both decrees. Paragraph Seven of the property settlement agreement provided that the appellant agreed to pay the respondent $350 per month for her support and the support of the two minor children. After the respondent remarried and one of the minor children married, the appellant in March, 1949, moved to modify the decree to strike paragraph Seven therefrom on the theory that paragraph Seven provided for the payment of support and alimony. The motion was granted on June 22, 1949, when the Superior Court of Contra Costa County made an order modifying the decree to strike out paragraph Seven. This order was entered on June 27, 1949. On July 6,1949, respondent filed a motion to vacate the order of June 22, 1949. This motion was granted on September 16, 1949, the court having determined that the agreement was not merged in the interlocutory and final decrees of divorce and

Taliaferro v. Taliaferro

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KAUFMAN, P. J.

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