Hopper v. Hopper

[447]

STONE, J.

This appeal is from a judgment entered following order sustaining a demurrer without leave to amend.

Plaintiff and defendant were married in 1941. During 19 years of marriage they had three children and accumulated a substantial amount of community property. The family relationship deteriorated during the latter years of the marriage and culminated in a property settlement agreement executed November 22, 1960, followed by plaintiff’s interlocutory decree of divorce from defendant by default, on December 19, 1960. A final decree of divorce was entered January 4,1962.

It is the property settlement agreement that plaintiff seeks to attack by this action, alleging that for some time before entering into the property settlement agreement she was mentally ill, distraught and incapable of protecting her own interests, that defendant by coercion and fraudulent statements overreached her, so that she received substantially less than a fair share of the community property. She also alleges that defendant directed her to see an attorney named by him and not of her own choosing, and she did not have the advice of an attorney looking to her best interests during the property settlement negotiations nor in the default divorce action.

Defendant demurred to the complaint upon the ground that it failed to state a cause of action, urging res judicata. Defendant argued in the trial court, as here, that the property settlement agreement merged with the interlocutory decree of divorce so that the terms of the agreement became part of the judgment of divorce. Prom this it is argued that the property settlement agreement cannot be attacked by this action in equity, for the same reasons a judgment cannot be collaterally attacked. This argument presupposes that the attack is based upon intrinsic fraud.

At the outset, it is necessary to note that we must accept the allegations of the complaint as true, since this is an appeal from a judgment sustaining a demurrer to the complaint without leave to amend.

(Gressley

v.

Williams,

193 Cal.App.2d 636, 638-639 [14 Cal.Rptr. 496] ;