Philp v. Philp

PRESTON, J.

This appeal by defendant from judgment for plaintiff, submitted on motion to dismiss appeal or affirm judgment, presents the main question of sufficiency of the evidence to support the conclusions of the court below.

On September 26, 1931, plaintiff and defendant, then husband and wife, executed a property settlement agreement, dividing equally their entire community estate and further providing that in the event plaintiff should be assessed upon an unsettled income tax claim, defendant would pay half of the assessment. On March 21, 1932, the United States government levied an extra assessment of $14,802.42, which plaintiff paid. Defendant refused to reimburse him as agreed and he therefore brought this action to recover from her half of said tax or the sum of $7,401.21. Defendant answered and also cross-complained, seeking impeachment of the property settlement for fraud. To the cross-action plaintiff pleaded a general denial and

res judicata

by reason of a divorce decree; later he added pleas of estoppel and laches.

The cause went to trial. Defendant endeavored to show that plaintiff, by deceit and fraudulent representations, had induced her to execute the property settlement at a time when she was in a worried, weakened mental and physical condition; that he took undue advantage of her trust and love for him, engendered by their marriage of more than twenty-two years; that she acted without independent advice, relying solely upon plaintiff’s false assurances that they would be permanently reconciled.

It appears that about August 13, 1931, some few weeks prior to execution of said agreement, defendant filed against plaintiff an action for divorce, based on charges of adultery, wherein she sought an award of all their community prop

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erty. Plaintiff thereupon gathered together certain of the community assets and secreted himself. He was finally located on September 5, 1931, and served with summons. He immediately returned home, arriving about 1 o’clock in the morning, and forthwith effected with defendant what purported to be a sincere reconciliation, made in good faith with intent of full performance, it being also understood that defendant would dismiss her divorce action and that the parties would execute an agreement settling their property rights. However, plaintiff thereafter continued to live with defendant for only about two months. In November, 1931, he left for Reno, Nevada, to join one Mary Gilbert, defendant’s sister-in-law, who was there securing a divorce and whom he later married. During the brief period of resumption by plaintiff and defendant of their marital relations, the property agreement here in question was executed and the divorce action was dismissed. To accomplish the latter result, it was necessary for defendant to secure new counsel as her then attorneys refused to dismiss the case.