DuQuesnay v. Henderson

YORK, P. J.

Plaintiff, the divorced wife of defendant, seeks to recover a balance alleged to be due her under a property settlement executed on May 22, 1935, subsequent to the filing in Los Angeles County by plaintiff of an action for divorce against defendant. Under the terms of said agreement, defendant among other things promised to pay to plaintiff $250 cash forthwith and the further sum of $10,525, payable $100 or more on the first of every month commencing July 1, 1935, for a period of five years, the balance of said $10,525 remaining unpaid on May 21, 1940, to be paid by defendant at that time in full, or a note secured by a trust deed to be executed by him in favor of plaintiff, payable $100 or more per month with interest at 5 per cent per annum, “provided, however, that upon the sale, transfer or refinancing of the real property, above described, the balance then remaining unpaid of said $10,525.00 shall immediately become due and payable”.

No evidence was presented at the trial, but the cause was submitted upon a stipulation of facts from which it appears that plaintiff and defendant intermarried on September 17, 1921, and that since then until the filing of the complaint herein (September 24, 1936) “both have been and now are

bona fide

residents” of Los Angeles County; that on November 15, 1934, plaintiff filed in Mexico an action for divorce against defendant, which was granted, neither party appearing in person in the Mexican court; that on said November 15, 1934, the parties made a property settlement, which was

[13]

duly recorded; that on the following April 29, 1935, plaintiff filed in Los Angeles County an action for divorce against defendant and, on May 22, 1935, said parties executed and recorded another property settlement agreement which is the subject of the instant action; that thereafter an interlocutory decree of divorce was granted, which approved both property settlements, and on July 7, 1936, final judgment of divorce was entered in Los Angeles County. Meanwhile, on September 26, 1935, plaintiff agreed to permit defendant to mortgage one of the lots covered by the property settlement of May 22, 1935, and on June 11, 1936, defendant executed a note for $40,000 secured by a mortgage on the remaining two lots described in said property settlement agreement. It was further stipulated that $1900 had been paid under the terms of the said agreement, leaving a balance, if any, of $8,875 due to plaintiff.