Hynum v. First National Bank of San Diego

BROWN (Gerald), P. J.

Frank A. Hynum appeals from a judgment declaring his rights and those of his deceased ex-wife ’s executor in a promissory note which he had executed in favor of his then wife as part of a divorce settlement.

The promissory note was in the face amount of $150,000. It provided for 2 percent interest per annum and payments of $1,050 or more per month to be increased to $1,350 or more monthly after six months. The unpaid balance of the note would become due and payable at the option of the wife should a payment be more than 30 days delinquent. The note was secured by a pledge of another note which was secured by a second deed of trust on real property. Provision was made for reasonable attorney’s fees to the wife should action be required to enforce the note. The last paragraph of the note provided:

‘ ‘ This note is given as alimony and represents support payments due payee as set forth in that certain action for divorce between the parties hereto, being action No. 259229 in the Superior Court of the State of California in and for the County of San Diego. ’ ’

Appellant contends the note is clear and unambiguous on its face, represents an agreement to pay alimony and as such his obligation to make payments on the note terminated when the payee, his ex-wife, died.

At the outset of the trial, appellant moved the court to exclude any extrinsic evidence “concerning the negotiations of the parties and all evidence as to what the parties really intended the words alimony and support to mean.’’ When this motion was denied, appellant introduced a copy of the note in evidence and rested.

The respondent executor showed by evidence of the divorce negotiations, agreements, court orders and testimony of Mrs. Hynum’s attorney the note was intended as a division of community property; the recital in the note it represented alimony and support was intended by the parties to prevent the obligation of the note from being discharged should the husband go through bankruptcy.

The court below found: “. . . the aforedescribed promis

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sory note was given to the Decedent in consideration of the Decedent’s transfer to the Plaintiff of assets of like or greater value, and in settlement and division of community properties. . . . [T]o avoid the possibility of the discharge of said note in bankruptcy, and not otherwise, it was the agreement of the Plaintiff and the Decedent that for the purpose of the Bankruptcy Act, the unpaid balance of said note could be considered as alimony to avoid discharge.” The court also found: “The Plaintiff and the Decedent, Mary E. Hynum, agreed both orally and in writing . . . the payments on the promissory note would continue until the principal sum was paid in full, without regard to the death or remarriage of either party. ’ ’