Sellar v. Sellar

WOOD (Fred B.), J. Defendant George Sellar moved to modify a final decree of divorce by setting aside a property settlement agreement which was attached to and incorporated in the interlocutory and approved by the interlocutory and the final decrees.

He sought to delete from the decree and the agreement "all alimony, support payments, devises and bequests and interests of every kind . . . for the benefit of plaintiff [Katherine Sellar] . . . and that the property of defendant be released from any and all liens by reason thereof.”

He sought this deletion on the alleged ground of intrinsic fraud* in the negotiation and execution of the agreement and in the conduct of the divorce proceedings. The public policy that underlies the principle of res judicata “must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which fully to present his case . . . [Equitable] relief may be granted if the party seeking it was precluded by fraud or the mistake of the other party from participating in the proceeding or from fully [288]presenting his ease. [Citations.] ” (Jorgensen v. Jorgensen, 32 Cal.2d 13, 18-19 [193 P.2d 728].) Some but not necessarily all of the defendant’s allegations bring his motion within the purview of this policy. Since the trial court found against him upon every point and the evidence supports the findings, it is unnecessary to consider which points might have entitled him to relief if the court had found in his favor.

d) The evidence supports the finding that defendant was physically and mentally capable of understanding and executing the property settlement agreement and appearing as a witness on behalf of himself at the hearing of the divorce action.

Although there was evidence that defendant had been a heavy drinker of alcoholic beverages and that he was under the influence of alcohol a great deal of the time, there was also evidence that he was a periodic drinker and between “binges” would abstain from drinking for several weeks. Mr. K. R. MeDougall, defendant’s attorney at the time of the negotiation of the agreement, testified that he was in frequent consultation with defendant during these negotiations, that everything was explained to him, and that defendant did not appear to be under the influence of liquor during these consultations. The final form of the agreement was explained to him clause by clause, and he took it home with him for further study. At the time he did not appear to be under the influence of liquor. The defendant was actually present at the hearing of the interlocutory decree and sober. The final decree was obtained at defendant’s own instigation. Defendant himself testified that he was familiar with the most important features of the agreement and had complied with them since the time the agreement was executed.