Metropolitan News-Enterprise


Thursday, June 17, 2010


Page 11



Judge Resurrects Dead Suit, Brown Ordered to Pay




One of the most confounding sets of divorce-related cases you could come across, from a procedural standpoint, stems from the breakup of the marriage of attorney Herbert Cutler Brown and Zoe Lowe Brown.

Z.L. Brown in 1932 brought an action in Los Angeles Superior Court to enforce a property settlement agreement she had entered into in 1917 with H.C. Brown. She got a “quickie” Nevada divorce in 1919. He honored his lifelong obligations under the agreement to pay alimony and child support until 1930, when he stopped paying. The trial court found against the former wife on her first four causes of action, and in her favor on the fifth. He appealed, she didn’t. The Court of Appeal snatched victory from the woman, reversing (without directions), proclaiming that any contract made in contemplation of a divorce was void as against public policy.

All that was related last week.

The remittitur was filed, and what do you suppose the plaintiff did? She moved to have the matter set for trial on all five causes of action. That would appear to be folly…except that the motion was granted.

Spurning Herbert Cutler Brown’s motion to dismiss the first four causes of action on the ground that there was a final judgment in his favor on them, the trial judge granted the plaintiff’s motion to amend her complaint as to all five causes of action.

The defendant charged over to the District Court of Appeal seeking a writ of mandate to restrain the Superior Court “from retrying said action upon any of the issues joined therein.” Denied.

HCB tried again. This time he sought a writ of prohibition in the appeals court. Denied. The May 8, 1936, opinion says:

“Pleas of res judicata and estoppel are defensive matter and the superior court has jurisdiction to determine the merits thereof when interposed properly by pleading or proof; and, any alleged error in ruling upon such a plea being reversible on appeal, the pleader is not entitled to a writ of prohibition to restrain the superior court from proceeding with the trial of the case when the court has jurisdiction of the parties and subject-matter of the action.”

Although the opinion allows that “effect of the prior judgment may be reviewed on appeal,” it wasn’t. Los Angeles Superior Court Judge Leslie E. Still on Dec. 9, 1936, awarded the plaintiff the sum of $9,080 (about $ 144,000 in terms of today’s dollar), and HCB did not appeal.

That doesn’t mean that HCB had given up. After the time for filing an appeal expired, he moved to vacate the allegedly void judgment. The motion was denied.

The Court of Appeal on May 27, 1938, affirmed, saying:

“The effect of a prior appeal and reversal without directions is to revest in the trial court authority and jurisdiction to determine whether or not the decision upon the prior appeal is res judicata. The court had jurisdiction of the subject matter….We are not concerned on the appeal from the order with whether the judgment of the court was right or wrong. That question is not before us. That question cannot be brought before us on an appeal from an order denying a motion to set it aside presented to the court long after the time for appeal had expired.”

Was that, at long last, the end of the litigation? No. H.C. Brown declared bankruptcy. His former wife thus had the challenge of reaching his assets. A referee on July 26, 1938, ordered that certain stock certificates in the name of HCB be turned over to ZLB; a petition for review was filed in the federal District Court; on Nov. 25, 1939, it was dismissed as untimely.

It might be noted that H.C. Brown was a fairly savvy lawyer and chances are that he knew in 1917 when the settlement agreement was reached that it was invalid.

Under a 1900 decision of the California Supreme Court, grounded on common law, “any agreement for divorce, or any collateral bargaining promotive of it, is considered unlawful and void.”

Divorce was simply against public policy. Until “no-fault” divorces were instituted in 1970, grounds had to be established, such as adultery or extreme cruelty. Settlement agreements were frowned upon because of the prospect of a husband desisting from asserting the falsity of the grounds alleged in the complaint in return for the wife accepting a monetary pay-off that was on the modest side.

HCB possibly figured he would have no difficulty in disavowing the settlement agreement later, should he choose to do so.

Under the 1935 decision of the Court of Appeal reversing a judgment for Zoe Brown, the settlement agreement was unenforceable—period. It was only through the failure of a newly appointed trial court judge to apply the law as set forth by the higher courts that the former wife obtained a new judgment.


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