Metropolitan News-Enterprise


Thursday, June 10, 2010


Page 11



Herbert C. Brown Wins in Court of Appeal




In these days when it is common for parties to make decisions before a wedding concerning division of their property should a dissolution of marriage occur, it will seem incredible that under a July 10, 1935, Court of Appeal decision, any property settlement agreement in contemplation of divorce was unenforceable in an action on the contract.

The decision came in connection with stormy and protracted post-divorce litigation between attorney Herbert Cutler Brown and his erstwhile wife, the former Zoe Elsie Lowe, daughter of baloonist/entrepeneur Thaddeus S. C. Lowe, after whom Mount Lowe is named.

Here’s what the appeals court said in that 1935 opinion:

“Where a husband and wife agree that a divorce shall be obtained by one or the other, and adjust their affairs in contemplation of a divorce by entering into a settlement conditioned thereon, of their property rights and make promises of an executory nature pertaining thereto, and such facts are established in a subsequent action on the contract, they have no right to receive the aid of the court in the enforcement of their agreement, which the law condemns as a violation of the policy of the state. If, as the court found, it was of the essence of the agreement, although not stated therein, that plaintiff should obtain a divorce from the defendant, and the promises of the defendant were made in contemplation of and to facilitate, and conditioned upon, a dissolution of the marriage, that fact bars a recovery by plaintiff in a suit based on the contract.”

The property settlement agreement was executed by the parties on Feb. 1, 1917. An immediate divorce action was not filed in the Los Angeles Superior Court. Instead, Zoe Lowe Brown later went off to Reno for a “quickie” Nevada divorce, which she secured on May 8, 1919.

The decree did nothing more than terminate the marriage.

Despite the absence of a court order, HCB made monthly child support payments, pursuant to the accord. That agreement called for the payments to Zoe Lowe Brown for the benefit of their son in the amount of  $200 until the son reached his majority, and then at the rate of $125 a month for the rest of her life.

Brown made the payments, that is, until 1930, when he stopped. The son, Cutler Brown, was then age 26, working as a radio technician, and living with his mother.

The ex-wife sued in Los Angeles Superior Court on the contract. She sought installment payments that were in arrears, as well as well as a lump sum she contended was owed her.

Presiding over the trial was Superior Court Judge J.O. Moncur, from Plumas County. While ruling for the husband on the first four causes of action on the ground that contracts made in contemplation of a divorce are void, he found “that there was ample consideration for the promise of defendant to pay to the plaintiff the said sum of $12,500,” reduced to $11,225 in light of an advance that had been made by Herbert Brown.

He appealed; she didn’t. The opinion was written by a pro tem, Los Angeles Superior Court Judge Clement Shinn (later an associate justice, then presiding justice, of the Court of Appeal.)

The judgment was reversed, with Shinn’s opinion declaring:

“The question of consideration is not material. The contract itself shows ample consideration in the mutual covenants of the parties, under which their property was divided, certain obligations were assumed, and waivers were made. But the law does not look with approval upon a contract in contravention of good morals merely because it is supported by a sufficient consideration, nor does the law allow the enforcement of contracts void against public policy through the application of the doctrine of estoppel.”

The Court of Appeal having spoken, and the case not having gone to the California Supreme Court, that would seem to have ended the matter. It didn’t. Spurning Herbert Cutler Brown’s protest of res judicata, the Superior Court allowed the entire complaint to be amended and tried the action.  I’ll discuss that next time.


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