Roberts v. Roberts

BARNARD, P. J. This is a divorce action in which an interlocutory decree of divorce was entered in favor of the plaintiff on August 10, 1949, and a final decree of divorce was entered in her favor on August 21, 1950. Each of these decrees incorporated, by reference, a property settlement agreement [486]dated June 22, 1949, and ordered performance of the terms of the agreement by the respective parties.

The property settlement agreement provided that the defendant should receive certain personal property; that the plaintiff should receive certain personal property, including certain equipment and livestock on a parcel of real property; that the defendant should convey this real property to the plaintiff, and she should take possession on June 25, 1949; and that the plaintiff was to pay the defendant $5,500, payable in installments, the last one being due on July 1, 1953, this indebtedness to be secured by a deed of trust on this real property.

On August 31, 1953, the plaintiff filed in the divorce action an application for an order restraining the defendant and the Home Title Company from foreclosing or attempting to foreclose the trust deed which had been given to the defendant in compliance with the divorce decree; and for an order requiring the defendant to pay the plaintiff’s attorneys’ fees to enable her to prosecute that matter. In support of that application the plaintiff filed an affidavit alleging that the property settlement agreement was made a part of the interlocutory decree of divorce and the performance of its terms was ordered by that decree; that as a part of the property settlement agreement and decree she was to receive certain items of personal property; that when she took possession of the ranch she found portions of these items were not there; that she had certain other claims against the defendant, including one which arose from another action in which she had appeared as guardian for certain minors; that the final payment on the trust deed, under which the Home Title Company was trustee, was due on July 1,1953; and that on that date she advised the defendant that she was offsetting the amounts referred to in her affidavit against the balance due on the trust deed. She asked that any foreclosure of the trust deed be restrained until a hearing was had and it was determined which of the parties to the action was indebted to the other.

The court issued an order requiring the defendant and the Home Title Company to show cause why they should not be enjoined from foreclosing or attempting to foreclose this deed of trust; ordering the defendant to show cause why he should not pay the plaintiff a reasonable sum for attorney’s fees in this proceeding; and temporarily restraining the defendant and the Home Title Company from taking any steps toward foreclosing this deed of trust until the further order of the