Andrew v. Andrew

[453]

STURTEVANT, J.

The defendant in the above entitled divorce action has appealed from the judgment in favor of the plaintiff, his wife. The plaintiff alleged in her complaint a cause of action for divorce based on the alleged extreme cruelty of the defendant. She charged acts of both mental and bodily cruelty. She alleged that she and her husband were possessed of community property but that shejRd.notJmowthe extent and the nature thereof. She set forth that they had three minor daughters. She also alleged that she had no funds to provide for herself and children nor to prosecute said action. She prayed that she be awarded a decree of divorce, that the custody of said minors be awarded to her, and that she be awarded one-half of the community property, and that she be awarded counsel fees and costs. The defendant filed an answer in which he denied the alleged acts of cruelty and he also denied that the spouses owned any community property. He also filed a cross-complaint in which he charged the plaintiff with cruelty. In his cross-complaint he alleged that there-was no community property and pleaded in

haec verba

a property settlement and asked a decree approving it. The plaintiff answered the cross-complaint and in that answer she denied the making of the said property settlement.

The cause was heard on all of said issues and the trial court made findings in favor of the plaintiff. It awarded the plaintiff (1) a decree of divorce; (2) the custody of said minors; (3) sixty dollars per month for the maintenance of said minors; (4) the title to a tract of land, hereinafter called “The Delhi Lots,” and certain household furnishings; (5) counsel fees in the sum of $125, and (6) costs of suit. It also ordered that the alleged property settlement be set aside and that the balance of the property be awarded to the defendant.

The defendant makes one point only and that is set forth pursuant to the rules of this court on the first page of his brief. He says: “Where there is no evidence of fraud, force, undue influence, or over-reaching, may the court ignore a property settlement agreement executed by a husband and wife after full disclosure of all material facts to each, and, contrary to the agreement, give all the community property to said wife, and grant her attorney fees and costs that were in turn waived in the agreement?” The vice in the question as written rests in the fact that the defendant fails to apply certain statutory rules to the facts. His point as written is not presented by the