Ogburn v. Ogburn

FILES, J. In this divorce action the appeal is from the interlocutory judgment and from an order made on the day before trial denying defendant’s motion for a traveling allowance. The record supports the following statement of facts:

On January 10, 1961, plaintiff, a widower aged 74, married defendant, a widow aged 66, at her home in Kelso, Washington. Por the next 45 days they resided together in plaintiff’s home in Van Nuys, California. During this period plaintiff was obliged to do his smoking in the garage, give up his favorite radio programs, and do the greater part of the housework. Defendant demanded that he give up sleeping in [97]his own bedroom, and when he refused, she removed herself to the back bedroom. Plaintiff worried, suffered stomach trouble and lost 30 pounds. On February 24, 1961, without any warning or discussion, defendant left the marital domicile and flew back to Washington.

Plaintiff next saw his wife on March 23, when she arrived unannounced with her daughter and niece who had brought her back in an automobile to pick up her personal effects. Plaintiff pleaded for a reconciliation but defendant refused to discuss it. The two of them, accompanied by her daughter and niece, visited an attorney. Plaintiff had never seen the attorney before. Defendant asked for $2,000, but she settled for $500. The attorney prepared and the parties executed a property settlement agreement whereby plaintiff paid defendant $500 and each released the other of all obligations. Defendant stayed overnight with her nephews in Hawthorne, and the following day she returned to Washington. Plaintiff has not seen her since.

Prior to her marriage defendant had lived on Social Security and state aid. Plaintiff was a retired aircraft assembler. He owned a home and had a savings account with a balance of about $7,000 at the time of the property settlement. He lived on Social Security and a pension which paid him a total of $148.50 per month. There was no community property.

On June 9, 1961, plaintiff commenced this action by filing a complaint for annulment upon the ground of fraud. He later amended to state an alternative cause of action for divorce upon the ground of extreme cruelty. On September 25, 1961, defendant filed an answer and cross-complaint for divorce upon the ground of extreme cruelty. She alleged that the property settlement agreement had been obtained through duress or undue influence and under a mutual mistake of fact, and she demanded alimony.