King v. King

BRAY, P. J. Plaintiff appealed from an “Order and Judgment” of the Superior Court of San Mateo County which denied the motion of plaintiff, Rena J. King, to vacate and set aside the interlocutory decree of divorce granted by said court on the 20th day of October 1961, and refused to vacate and set aside the property settlement agreement of the parties, dated the 3d day of October 1961, and incorporated in said interlocutory judgment and decree of divorce. Thereafter by “Notice of Partial Abandonment of Appeal” plaintiff abandoned her appeal as to that portion of the order and judgment denying plaintiff’s motion to vacate and set aside the interlocutory decree of divorce, and stated that she desired to pursue her appeal only from the ruling of the court denying her motion to set aside the property settlement agreement.

Question Presented

Did the trial court have jurisdiction to entertain the motion to set aside the property settlement agreement $

Record

On October 20, 1961, an interlocutory decree of divorce in favor of plaintiff was entered herein. The property settlement agreement dated October 3, 1961, was incorporated in the [638]decree.1 On December 8, 1961, plaintiff filed a notice of motion to vacate the interlocutory decree and to annul, set aside and vacate the incorporated property settlement agreement. The alleged grounds of the motion were that plaintiff was coerced into signing the agreement, did not have independent legal advice in that the same attorney represented both parties in the divorce action, and that the agreement and the divorce decree were inequitable, unjust and a substantial deprivation of plaintiff’s property rights. After hearing, the court denied the motion flatly as to setting aside the decree, and as to the agreement, the denial was without prejudice to plaintiff’s bringing an independent action to attempt to set aside the agreement.

In its memorandum decision the trial court, after finding on the merits no reason for setting aside the interlocutory decree, stated: ‘ ‘ The question of the property settlement agreement appears to fall squarely within the ease of Olson v. Olson, 148 Cal.App.2d 479 [306 P.2d 1036].” Defendant contends that the court denied the motion to set aside the property settlement agreement both on the merits and on lack of jurisdiction as set forth in Olson. Plaintiff contends that the denial was solely on the latter ground. As we are satisfied that the court did not have jurisdiction to set aside the property settlement agreement, particularly after having found no grounds on the merits for setting aside the interlocutory decree and the approval of the agreement therein contained (the correctness of the court’s action to that extent being conceded by plaintiff’s abandonment of her appeal from the interlocutory decree) we deem it unnecessary to consider the evidence introduced at the hearing directed to the merits of plaintiff’s contention that the agreement was obtained through coercion.