Lopez v. Lopez

McCOMB, J. Defendant appeals from an order of the superior court setting aside an interlocutory decree of divorce, a final decree of divorce, and a property settlement agreement.

Facts: Plaintiff wife and defendant husband stipulated in a divorce proceeding that under a property settlement agreement to be executed between them defendant would, among other things, agree to pay plaintiff $200 per month for her support and $300 per month for the support of the parties’ minor child. No time limitation for such payments was specified.

It was also stipulated that upon reduction of the agreement to writing either party might apply to the court for a default hearing.

Thereafter, defendant’s attorney drafted an agreement and submitted it to defendant, who was also an attorney. The draft provided, “Said payments [for plaintiff’s support] shall continue until such time as said wife shall die or remarry. ’ ’

Defendant inserted “or husband” after “said wife,” so that the provision read, “Said payments shall continue until such time as said wife or husband shall die or remarry.”

The agreement was then typed in final form (13 pages) in the office of defendant’s attorney, who later left it in his [737]office to be picked up by plaintiff’s attorney, with whom he had had previous dealings.

There was no letter of transmittal with the document, and nothing was done to call the attention of plaintiff’s attorney to the fact that it provided for the termination of plaintiff’s support payments on the death or remarriage of defendant.

Plaintiff’s attorney cheeked the provisions pertaining to the division of community property and checked the properties described against the list that had been used at the time the stipulation was made. He did not notice that the provision regarding plaintiff's support payments called for the termination thereof upon the death or remarriage of defendant.

Plaintiff was given a copy of the agreement; and, relying upon her attorney and not fully understanding the terms of the agreement, she did not notice, either, that it provided for the termination of her support payments on defendant’s death or remarriage.

Thereafter, at a default hearing the executed agreement was introduced in evidence by plaintiff, and it was approved by the court and incorporated into the interlocutory decree of divorce and subsequently into the final decree of divorce.