Metropolitan News-Enterprise


Thursday, July 1, 2010


Page 15



State High Court Repudiates Language in Brown Case




Eight years after the Court of Appeal rendered its decision in Brown v. Brown, reflecting the traditional view that courts disfavored divorces or anything encouraging them, the California Supreme Court disapproved that earlier case, except in narrow circumstances.

As past columns recited, Zoe Lowe Brown in 1917 entered into a marital settlement agreement with her husband, Los Angeles attorney Herbert Cutler Brown. On May 8, 1919, she obtained a “quickie” divorce in Reno which did no more than end the marriage.

Had she secured a decree in the Los Angeles Superior Court, that court would have divided the property and set enforceable support obligations. But Zoe Lowe Brown was secure in the knowledge that her ex-spouse would honor the settlement agreement—and indeed he did, dutifully, make monthly spousal and child-support payments...until he stopped in 1930.

Zoe Lowe Brown sued in 1932 under the settlement agreement. The Court of Appeal held in 1935 that a contract between spouses in contemplation of a divorce was void as against public policy.

The language in the opinion was broad. The 1943 Supreme Court opinion finds it too broad, proclaiming:

“In the absence of fraud, collusion or imposition upon the court, public policy does not prevent parties who have separated from entering into a contract disposing of their property rights which shall become effective only in the event one of the parties obtains a divorce, even though such a contract may be a factor in persuading a party who has a good cause for divorce to proceed to establish it.”

Herbert and Zoe Brown had not separated at the time they entered into their agreement, and “for that reason,” the opinion says, “the case may be factually distinguishable from the situation here presented.” It adds that “the language of that opinion is hereby disapproved insofar as it is inconsistent with anything said by us here.”

In other words, a property settlement agreement still was contrary to public policy if entered into before the parties separated. In 1957, the Supreme Court obliterated that precept.

By the time the ex-husband ceased making payments in 1930, he had a third wife. At 64, he was married to a 36-year-old piano teacher, Eloise Brown, according to the Census. He seemed to replace wives with younger ones the way he traded in automobiles for newer models.

By then, he had a son, Calvin, by his second marriage, to the former Katherine McNeff. The 1920 Census shows his new wife (they were wed in 1919) to be 36.

The 1910 Census reveals that he was living with his clan—which included son Cutler and daughter Zoe—in Tennessee, where he was in law practice.

At the time Zoe Lowe Brown secured the divorce, she was 44.

Herbert Cutler Brown died in 1947 at the age of 81.

His obituary in the Los Angeles Times says he was “[o]ne of the organizers of the Automobile Club of Southern California.” He wasn’t, though he had been an early member.

A 1921 “blue book,” generally based on biographical matter supplied by those profiled, also contains exaggerations concerning Brown, including this:

“Admitted to the bar in the early part of 1892 and after one year of practice alone, he became associated with Judge D. P. Hatch and John M. Miller under the firm name of Hatch, Miller & Brown, a firm that during its existence handled many cases of interest as well as great importance.”

Brown was admitted to the bar in California on April 4, 1893. Hatch, Miller & Brown was formed in 1896, and the firm was dissolved Oct. 23, 1897.

The book says that Brown, a Republican, “was twice offered an appointment from the Governor of the office of judge of the Superior Court and the nomination for state senator, but he has always steadily declined political honors.”

Maybe Brown was offered a judgeship. Maybe not. What comes to mind is a jurist in recent years, now deceased, who proclaimed that he “turned down” an elevation from the Newhall Municipal Court to the Los Angeles Superior Court…but, upon being pressed for details, admitted that he had merely received a suggestion from the supervising judge in Van Nuys that he submit an application.

As to a nomination for the state Senate, Brown could not have turned one down unless he had run for his party’s nomination in the primary, won it, and then declined to be a candidate in the general election. That didn’t occur.

Brown, while junior partner in Hatch, Miller & Brown, was one of the original tenants in 1896 in the Wilcox Building and, as such, has here been profiled. Next: a look at an employee of that firm, W.C. Petchner.


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