Schumacher v. City National Bank

Opinion

WHELAN, J. Evelyn L. Schumacher, as guardian of Laura Mary Schumacher and Suzanne L. Schumacher, minors, appeals from an order setting aside an order for payment of family support for said minors under Probate Code section 681.

M. John Schumacher (Schumacher), a practicing psychiatrist, and father of said minors, died April 24, 1969.

Evelyn L. Schumacher (Evelyn) is the former wife of Schumacher and the mother of the minors. On July 1, 1963, she and Schumacher executed a property settlement agreement by which he contracted to pay $200 per month for the support of each of the minors.

In the subsequent divorce decree the agreement was approved and the parties ordered to perform its terms.

[149]Laura Mary was bom on February 14, 1950, and Suzanne Lynne on April 20, 1951.

On July 3, 1969, Evelyn, on behalf of herself and the minors, filed a petition for a family allowance of $200 per month for each child alleging the contract provision and the divorce decree ordering compliance.

An ex parte order was filed on the same day (although dated July 2)‘ fixing an allowance of $200 per month for each child commencing as of May 1, 1969, and to continue until further order of the court.

On September 4, 1969, City National Bank, as executor of the last will of Schumacher, filed a petition for an order vacating the order of July 3, 1969. The hearing of that petition was set for September 26.

The basis of the petition to set aside the earlier order was the property settlement agreement under which, it was alleged, Schumacher agreed to maintain life insurance policies in favor of Evelyn and the children so that the proceeds should satisfy his post-mortem obligation for child support.

The allegations of the petition, if true, would have supported a finding that the insurance proceeds were intended by the parties as a fund to furnish child support after the father’s death.

The petition to set aside the order of July 3, 1969, was heard on January 6, 1970.

At the hearing the attorneys who had represented the respective parties in negotiating the property settlement agreement testified to conversations at which both husband and wife were present, at which was discussed the husband’s concern that the support of the children should not be a burden upon his estate; his prospective insurance resources were balanced against the future liability for support based upon the then ages of the children, including a third child no longer dependent.