Riccomini v. Riccomini

GRIFFIN, J. Plaintiff brought an action for divorce against defendant, his wife, on the grounds of extreme cruelty and adultery. A property settlement agreement was entered into and plaintiff secured an interlocutory decree of divorce on the grounds of extreme cruelty on April 13, 1925. The agreement was made a part of the decree and was approved by the court and defendant was awarded the custody of the three minor children, then aged 12, 10 and 8 years respectively.

The property settlement agreement provided for a cash payment by plaintiff to defendant of $2,000 and provided for a payment of $6,000 in monthly installments of $60 at four per cent interest. It also provided that defendant was to take care of and have the custody of the minor children “and that the payments, herein provided to be paid, are made for the purpose of the support and maintenance of said minor children;" that the defendant execute a deed to plaintiff for all her interest, as wife, in the community real property; that plaintiff execute a note and trust deed for $6,000, payable as set forth, “to secure the . . . defendant in the performance of this obligation"; that defendant “accepts the sum of $8,000 [852]... to be paid for the support and maintenance of said minor children, in full settlement” of all her claims as a wife.

The deeds were duly executed. Plaintiff made all payments under the trust deed when due up to January 12, 1928. A final decree of divorce was obtained in 1927. The oldest child was stricken and became permanently disabled. The defendant, on October 25, 1927, moved the trial court, in the divorce action, to modify the decree and allow her increased maintenance for the children from the sum of $60 per month to $150 per month. The motion was heard and granted in part. By minute order plaintiff was ordered to pay the probation officer $90 per month, which sum was to be given to defendant for support of the children. No modification of the decree was made. No further action was taken. Plaintiff made the payments under the original agreement and defendant kept the children with her until January 12, 1928, at which time defendant took the three children and left them with plaintiff, at his home, and he kept them thereafter and supported them until the two daughters were married. The crippled girl is still with him. He made no payments to defendant after January 12, 1928. He had paid to her on account of the trust deed, the sum of $2,606.26, leaving an apparent balance due of $3,393.74 on the principal of said note and trust deed at the time of the trial'of this action.