Ibbetson v. Ibbetson

NOURSE, J.

Plaintiff and respondent commenced an action for divorce, charging desertion by his wife, and defendant and appellant answered denying the allegations of plaintiff’s complaint and filed a cross-complaint for maintenance charging desertion on the part of plaintiff and alleging that the plaintiff had in his possession a large amount of community property, the nature and value of which she was unable to state. In his answer to the cross-complaint plaintiff denied that he had any community property in his possession, and in this behalf alleged that on the eleventh day of November, 1911, plaintiff and defendant entered into a contract whereby the parties agreed upon a division of the community property and granted to each other all of their community rights and agreed that the property so segregated and apportioned to each other should be the separate property of that party and that all rents, issues, and profits derived by each party from such property should be the separate estate of that party; also that all property acquired by either party thereto subsequent to September 1, 1911, should be and forever remain the separate property of such party. It appears that this agreement was made in pursuance of an order of the superior court made in an action brought by this defendant against this plaintiff for a divorce. This order, which was made on the sixteenth day of May, 1911, directed the entry of a decree of divorce of these parties, awarding to the husband the

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custody of the two sons of said parties and awarding to the wife the custody of their daughter, and directing the equal division of the community property. The agreement of November 11, 1911, in addition to providing for a division of the community property, required the husband to support and maintain the two sons whose custody he was given by the order of the court and required the wife to support the daughter. It was further agreed that the children of said parties should always be educated in religious schools at the cost and expense of the party having the custody of said children, as theretofore provided.

During the course of the trial plaintiff proceeded upon the theory that this contract was an executed agreement in so far as the property rights of the parties were concerned; that it was entered into upon the solicitation of the defendant to induce the plaintiff to go back and live with her, and that it was not a separation agreement. In accordance with this theory plaintiff contended during the course of the trial and still insists that the property acquired by him after the execution of the agreement was his separate property and that at the time of the trial there was no community property to be divided between the parties. On the other hand, the defendant proceeded upon the theory that the agreement was an executory contract in the nature of a separation agreement, that it had become abrogated by a later reconciliation, and that all property acquired by plaintiff subsequent to the execution of the agreement belonged to the community.