Neal v. Superior Court

Opinion

SILLS, P. J.

Herman and Judith Neal got divorced in 1996; the judgment required Herman to pay Judith $25,000—about $21,000 to equalize the division of community property plus another $4,000 for child support arrears. Herman was to pay $15,000 of the amount immediately, and give Judith a promissory note for the balance, secured by a trust deed encumbering Herman’s interest in the family residence. Additionally, Herman was ordered to pay about $2,500 a month as child support for the couple’s three minor children, and another $750 in spousal support for a limited duration.

Herman apparently never paid any of the roughly $10,000 he owed under the note. By March 1999, Judith, strapped for funds, sold the note to a

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collection agency for some $5,500. She also went to the district attorney to help her collect support arrearages which, she now alleges, exceeded $18,000.

Herman filed an order to show cause (OSC) to reduce his child support in September 1999; the OSC was heard on January 26, 2000, and resulted in this stipulation: Herman would pay Judith $11,500 as an accord and satisfaction. In return, Judith agreed to close her case with the district attorney and extinguish a wage assignment order served on Herman’s employer (which supposedly would facilitate the loan), plus discharge Herman’s obligation under the note and “take all steps necessary” to release the lien on his interest in the family residence. Judith agreed to release the lien and ask the district attorney not to press her claim because Herman had told her that these steps were necessary for him to obtain the loan on his interest in the house that he would use to pay her the $11,500.

Some six months later, according to Judith, Herman had not paid a dime toward the $11,500 obligation. So she filed a motion to set aside the January stipulation, based on the theory that Herman had misrepresented his intention to get the loan.

Within a fortnight Herman filed a civil complaint against Judith and the collection agency; alleging that he had satisfied the indebtedness reflected in the note, at least when “certain oral modifications” were taken into account. The complaint lists causes of action for declaratory relief, fraud, breach of contract, imposition of a constructive trust, and abuse of process.