Huntsberger v. Huntsberger

PRESTON, J.

This cause, an equitable action to enforce a partial assignment contained in a property settlement agreement, is before us on motion to dismiss the appeal

[657]

of certain defendants, or affirm the judgment rendered for plaintiff. The words “defendant” and “appellant” will be hereinafter used to refer to the defendant Paul Hun'tsberger, plaintiff’s former husband. A discussion of the position of the other defendants is unnecessary to a determination of the appeal.

Plaintiff married defendant in the year 1914 and was his wife for some sixteen years. There was no issue of said marriage. During 1929 or early in 1930 defendant became involved in illicit relations with an eighteen year old girl, Dorothy Myers, and was arrested on the charge of statutory rape. Thereafter, and about June 3, 1930, in Los Angeles County, plaintiff filed an action against him for divorce. A few days later, about June 10th, plaintiff and defendant executed a property settlement agreement whereby defendant gave plaintiff practically all of the community estate, together with some $5,700 in cash and likewise agreed to pay for her support and maintenance, so long as she should live and remain unmarried, the sum of $125 a month. To secure the latter payments, defendant executed to plaintiff an assignment whereby she would be paid the sum monthly from the proceeds of certain of his separate property, to wit: an undivided 2/9ths interest in certain real estate under ninety-nine year lease. Plaintiff then dismissed her California divorce action and proceeded to Nevada to establish a residence. All lump sum payments were duly made under said property settlement. Plaintiff sued in Nevada for divorce; the action came on for hearing; defendant voluntarily appeared therein; the property settlement was submitted to and approved by the Nevada court and incorporated in its decree, rendered September 24, 1930, in favor of plaintiff. Defendant took no appeal from this divorce decree and it became final. On September 30th he married the said Dorothy Myers and on October 6, 1930, the criminal case against him was dismissed.

Pursuant to said property settlement and notice thereof, said above-mentioned lessee duly forwarded to plaintiff the sum of $125 each month from June, 1930, to July, 1933, at which time payments were discontinued upon notice from defendant of revocation of the assignment. Thereafter defendant himself sent plaintiff $75 in the month of August, 1933, $100 in September and $100 in October. About Octo