Henley v. Henley

STONE, J. pro tem.

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Plaintiff filed an action for divorce upon the ground of defendant’s extreme cruelty. The complaint alleged that the parties owned no community property and that plaintiff had “not sufficient money or means of her own with which to maintain and support herself . . .; that

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defendant is well able to maintain and support plaintiff, and is well able to pay plaintiff the sum of $50.00 per month for her support and maintenance. ’ ’ The defendant in propria persona answered by general denial and stipulated that findings of fact and conclusions of law, as well as notice of time and place of trial, were waived. The defendant did not appear at the trial and the hearing was in effect a default proceeding. At the trial plaintiff introduced a letter addressed to defendant, c/o Arnold J. Isbell, DD 869, c/o Fleet Post Office, San Francisco, California. This letter was in the nature of a proposed property settlement agreement in which the plaintiff and defendant agreed to each assume certain of the community debts, there being no community property to divide. The letter provides in part, ‘ ‘ She is willing to assume all the rest of the obligations, provided that you continue the allotment until the divorce is final, when she would expect to begin receiving the $50.00 per month.”

”... Instead of preparing a lengthy property settlement agreement, I have had a duplicate of this letter enclosed. There is no property that is community property since it was owned by each of you prior to your marriage. If you are in agreement with the provisions of this letter, please sign the original on the bottom, keeping the copy for yourself and returning the original to me with the other papers in the enclosed envelope. ’ ’

The defendant signed the letter and it was introduced as an exhibit on behalf of the plaintiff. The court then asked the plaintiff whether she had been married before and she replied that she had. The court asked her whether she was receiving support from her former husband and the plaintiff replied she was receiving $50 a month child support, and the court advised her that she could have the amount increased. No other or additional evidence was introduced concerning the plaintiff’s circumstances. The court ordered the matter submitted and nine days later entered an interlocutory decree of divorce. In the form of decree which had been prepared and presented by counsel for plaintiff, the court struck out the provision for the allotment payment until the divorce became final and inserted in lieu thereof $1.00, and struck out the provision for payment of $50 per month support subsequent to the entry of final decree and inserted in lieu thereof $1.00. The plaintiff has appealed from the provisions of the interlocutory decree fixing the amount of alimony and support payments.