Watton v. Watton

SHINN, J.

Plaintiff and defendant herein were formerly wife and husband respectively. On July 12, 1933, they entered into an agreement, by the terms of which defendant agreed to pay plaintiff during the remainder of her life or until her remarriage, 10 per cent of his gross earnings and receipts from investments, with a minimum of one English pound sterling ($4.02) per week. Defendant brought suit for divorce in the State of Nevada and on September 5, 1933, a decree was granted in his favor, containing provisions accepting and adopting the agreement as a part of the decree, and ordering defendant to provide plaintiff herein with support as specified in the agreement. The present action was commenced August 7, 1944. The amended and supplemental complaint alleged the making of the agreement and the granting of the Nevada decree which ordered defendant to make payments 'in accordance with the agreement. It alleged that defendant had received as earnings specific sums of money between September 19, 1939, and September 5, 1,944; that he had wholly failed to pay any sums as provided in the agreement and the decree, and that there was accrued and unpaid thereunder the sum of $1,807.79, and it prayed for judgment in that amount. Findings and judgment were in accordance with the allegations of the amended and supplemental complaint. Defendant appeals.

It is the contention of defendant that plaintiff was not entitled to recover on the agreement because it was merged in the Nevada decree, citing

Hough

v.

Hough,

26 Cal.2d 605

[671]

[160 P.2d 15]. He also contends that the Nevada court was without jurisdiction to approve the agreement and to order him to pay the sums stipulated therein, for the reason that the decree was in his favor and the court therefore could not order him to support plaintiff. Upon this proposition he cites

In re Nielsen,

19 Cal.App.2d 305 [65 P.2d 360], and earlier cases which hold that the statutory law of California forbids the granting of support to an offending wife. Thus he reaches the conclusion that plaintiff can recover neither on the agreement'nor the decree, and hence that she cannot recover at all. He cannot, of course, escape from both, since his obligations under the contract could not be merged in the provisions of a void decree. The judgment, however, was upon the decree and sustains the jurisdiction of the Nevada court.