motion to dismiss — Gurs v. Gurs

In the Supreme Court

OF THE

United Staten

OcToRER TERM, 1976

No. 76-602

Gay Gurs, Appellant,

vs.

Marcot W. Gurs, Appellee.

Op Appeal from the Court of Appeal of the State of California,

First Appellate District, Division Three, From Judgment of

June 15, 1976 Which Judgment Became Final on

August 12, 1976 When the Supreme Court of

California Denied Hearing

MOTION TO DISMISS

For Lack of Jurisdiction Pursuant to Rule 16

Revised Supreme Court Rules

THEODORE H. ComMINos,

CoMINOS, SHOSTAK & EPSTEIN,

10 West Alisal Street,

Salinas, California 9390),

Attorneys for Appellee.

PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO. CA 94105

Page

EY ods J cg ud CaN eNRT Ee hennes COneKRONKe SEs 2

ee i Leena eesennssaeeees 2

EE I ohh tdoi viene cineKndbevcasecwsestenves 3

ST cic sudeweduaedands 664 6etes ends séaboeareonsese 3

Table of Authorities Cited

Cases Pages

Addison v. Addison, 43 Cal.Rptr. 97, 399 P.2d 897 (1965)

iidth dates Oeadd aie ktheubekiadanenste ed cntedae a 6, 7,9

Browden v. Gayle, 142 F.Supp. 707, affirmed 77 S.Ct. 145,

ee Me ee EE ED vc ccccscddanerncéecsceess 6

Bs ee Ge, B Ge ee CREED bev eccccccccccccccccces 5

Kulehar v. Kulchar, 1 Cal.3d 467 (1969) ............... 5

McLaughlin v. State of Florida, 85 S.Ct. 283, 379 US.

184, 13 L.Ed.2d 222, on remand 172 So.2d 640 ......... 6

Smith v. King, 277 F.Supp. 31, affirmed 88 S.Ct. 2128,

ff & & F* ) & rrr ree 6

Codes

ee es CS SE uv ccdaudeseacdudeccecuucestscs 3, 6, 7,9

Constitutions

United States Constitution, Fourteenth Amendment ...... 6

Rules

Rule 16, Revised Supreme Court Rules ................... 1

Statutes

i i Be GI ogo bincs.c scsi ccceccceccctessss: 9

~weee |

In the Supreme Court

OF THE

Rnited States

OcToBER TERM, 1976

No. 76-602

Gay Gurs, Appellant,

vs.

Marcort W. Gurs, Appellee.

Op Appeal from the Court of Appeai of the State of California,

First Appellate District, Division Three, From Judgment of

June 15, 1976 Which Judgment Became Final on

August 12, 1976 When the Supreme Court of

California Denied Hearing

MOTION TO DISMISS

For Lack of Jurisdiction Pursuant to Rule 16

Revised Supreme Court Rules

Appellee submits this motion to show the Supreme

Court of the United States that it has no jurisdiction

to consider the appeal and there is no substantial fed-

eral question presented.

2

OPINION BELOW

The opinion of the Court of Appeal is not reported

and will not be reported pursuant to the Order of the

same Court, since the opinion carries a stamp “NOT

TO BE PUBLISHED IN OFFICIAL REPORTS”.

Said Opinion is attached to the Jurisdictional State-

ment as Exhibit “A”.

STATEMENT OF THE CASE

The complaint which forms the basis for this ap-

peal was filed in the Superior Court of the State of

California in and for the County of Monterey, Case

No. M 7133 on August 12, 1975. Appellant (Plaintiff

therein) sought equitable relief from a Judgment

of Marital Dissolution entered May 17, 1972. That

Judgment became final on July 16, 1972. Appellant

alleged in his complaint that the Judgment dividing

his military retirement pension as quasi-community

property was unconstitutional because he was a non-

resident of the State of California at the time the

pension rights were earned. Appellee (Defendant

therein) filed a demurrer to that complaint asserting

the doctrine of res judicata as the matter had been

conclusively decided in the earlier dissolution pro-

ceeding.

The Superior Court ordered the demurrer sus-

tained without leave to amend on the ground of res

judicata and entered Judgment of Dismissal nune

pro tune as of October 17, 1975.

3

Notice of Appeal to the Court of Appeal was filed

on November 12, 1975. The opinion concluded that

the doctrine of res judicata was properly applied and

affirmed the Superior Court’s Judgment of Dismissal.

The opinion also contains dicta which discusses and

rejects Appellant’s claim of un-constitutionality. No-

tice of Appeal was thereafter filed with this Court.

QUESTIONS PRESENTED

1. Does the doctrine of res judicata bar the

re-litigation of the issue of the division of quasi-com-

munity property once a Marital Dissolution Judg-

ment has become final.

2. If not, is there a substantial federal question

concerning the constitutionality of Section 4803 of the

California Civil Code.

ARGUMENT

Appellant ignores the doctrine of res judicata in

his Jurisdictional Statement. Appellee submits that

the doctrine is dispositive of the case in that the so-

called federal question was neither timely nor prop-

erly raised.

The following facts are uncontroverted.

Appellee herein filed a Petition for Dissolution of

Marriage in Monterey County, State of California, on

August 23, 1971. Appellant herein filed a Response

4

to the Petition on or about November 12, 1971. Both

Appellee and Appellant were residents of California

at the time the Petition for Dissolution of Marriage

was filed.

The Court, after the trial of the issues where both

parties appeared and were represented by counsel,

granted a Judgment on May 17, 1972 awarding,

among items of community property, a fixed share of

Appellant’s military retirement to appellee.

Appellant did not appeal from the Judgment dis-

solving the marriage of the parties.

In August, 1975, Appellant herein filed an action

against the Appellee in the Superior Court, Monterey

County, alleging that at the time that Appellant’s mil-

itary retirement vested both Appellant and Appellee

were residents of a non-community property state. A

copy of said complaint is attached hereto as Exhibit

6A?

Appellee demurred to the complaint on the ground

that the issue presented by the complaint had been

litigated in the prior action for dissolution of mar-

riage in 1972.

The trial court sustained Appellee’s demurrer to

Appellant’s complaint on the ground of res judicata,

without leave to amend. Judgment of Dismissal was

entered.

The Court of Appeal of the State of California,

First Appellate District, Division Three, sustained

the trial court’s decision and affirmed the Judgment.

4)

The Supreme Court of the State of California de-

nied hearing on August 12, 1976.

It can be seen from the Complaint for Equitable

Relief that there is no allegation of excuse. mistake

or fraud. It is clear under California law that in

these circumstances the doctrine of res judicata is a

complete bar to the re-litigation. Kulchar v. Kulchar,

1 Cal.3d 467 (1969).

The Supreme Court of the State of California in

its Opinion in Kulchar, supra, analyzes the doctrine

of fes judicata as it applies to the division of prop-

erty rights in a dissolution case. It also enumerates

the circumstances when the doctrine would not apply.

Because of its appositeness to the instant fact situa-

tion it is attached hereto and marked Exhibit “B”.

It should be emphasized that if a litigant has had

a fair opportunity to present his case he will not be

afforded equitable relief to set a final judgment. Kul-

char v. Kulchar, supra.

The California Supreme Court restated the policy

underlying the doctrine of res judicata in the recent

ease of In re Crow, 4 Cal.3d 613, 623 (1971).

“The doctrine of res judicata in civil matters

rests upon the sound policy of limiting litigation

by preventing a party who has had one fair ad-

versary hearing on an issue from again drawing

it into controversy and subjecting the other party

to further expense in its reexamination.”

Thus, according to the settled California law, the

time for raising the so-called federal question has

6

long since passed. The Judgment of Dissolution be-

came properly final and there is no cause to un-do

that decision.

The Opinion of the California Court of Appeal

(Exhibit “A”, Jurisdictional Statement) discusses

and rejects Appellant’s constitutional argument. Ap-

pellee submits that the discussion therein is dicta be-

cause Appellant has no standing to raise the issue due

the direct estoppel of res judicata.

Notwithstanding that, the merits of Appellant’s

positions are discussed below.

The Fourteenth Amendment of the United States

Constitution does not prohibit a state legislature from

passing a law affecting the property rights of the cit-

izens of that state, so long as the law bears a reason-

able relationship to a legitimate state interest. Smith

v. King, 277 F.Supp. 31, affirmed 88 S.Ct. 2128, 392

U.S. 309, 20 L.Ed.2d 1118; Browden v. Gayle, 142

F.Supp. 707, affirmed 77 8.Ct. 145, 352 U.S. 145, 1

L.Ed.2d 114; McLaughlin v. State of Florida, 85 S.Ct.

283, 379 U.S. 184, 13 L.Ed.2d 222, on remand 172

So.2d 640. Appellant does not dispute this long-

standing principle of constitutional law.

Appellant argues that the protection of an “inno-

cent” party to a divorce was the sole state interest

upon which the Court in Addison v. Addison, 43 Cal.

Rptr. 97, 399 P.2d 897 (1965) held California’s quasi-

community property statute (Civil Code Section

4803) constitutional, and that, therefore, the January

1, 1970 advent of “no-fault divorcee” in California

7

renders this section unconstitutional. Appellant does

not say why he should be allowed to here raise this

contention which should have been advanced in his

original action finalized in 1972.

Assuming for argument that Appellant’s contention

is timely and properly before this Court, Appellant’s

reading of Addison, supra, is erroneous. It is true

that the Addison, supra, Court stated:

“In the case at bar it was Leona who was granted

a divorce from Morton on the ground of the lat-

ter’s adultery and hence it is the spouse guilty of

the marital infidelity from whom the otherwise

separate property is sought by the operation of

the quasi-community property legislation. We are

of the opinion that where the innocent party

would otherwise be left unprotected the state has

a very substantial interest and one sufficient to

provide for a fair and equitable distribution of

the marital property without running afoul of the

due process clause of the Fourteenth Amendment.

For the same reasons sections 1 and 13 of article

I of the California Constitution, substantially

similar in language, are not here applicable.”

By the time it uses this language, however, the

Court has already reached the conclusion that the

California legislature was acting in furtherance of

the public interest in its adoption of Civil Code See-

tion 4803, and this relied-upon interest is clearly

broader than the singular plight of “innocent” plain-

tiff Leona Addison. To quote the Court:

“Tt cannot be successfully argued that the quasi-

community property legislation is unconstitu-

8

tional because of a violation of the due process

clause of the federal Constitution. Morton has

not been deprived cf a vested right without due

process. As Professor Armstrong has correctly

pointed out in her article, supra: ‘Vested rights,

of course, may be impaired “with due process of

law” under many circumstances. The State’s in-

herent sovereign power includes the so called

“police power” right to interfere with vested

property rights whenever reasonably necessary

to the protection of the health, safety, morals,

and general well being of the people. The annals

of constitutional law are replete with decisions

approving, as constitutionally proper, the impair-

ing of, and even the complete confiscation of,

property rights when compelling public interest

justified it.

sh & &

“The constitutional question, on principal, there-

fore, would seem to be, not whether a vested right

is impaired by a marital property law change, but

whether such a change reasonably would be be-

lieved to be sufficiently necessary to the public

welfare as to justify the impairment.’ (Arm-

strong, ‘Prospective’ Application of Changes in

Community Property Control—Rule of Property

or Constitutional Necessity” (1945) supra, 33

Cal.L.Rev. 476, 495-496.)

“Clearly the interest of the state of the current

domicile in the matrimonial property of the par-

ties is substantial upon the dissolution of the

marriage relationship. This was expressly recog-

nized by the United States Supreme Court in

Williams v. State of North Carolina, 317 U.S. 287

at p. 298, 63 S.Ct. 207, at p. 213, 87 L.Ed. 279,

9

where it was said. ‘Each state as a sovereign has

a rightful and legitimate concern in the marital

status of persons domiciled within its borders.

The marriage relation creates problems of large

social importance. Protection of offspring, prop-

erty interests, and the enforcement of marital

responsibilities are but a few of commanding

problems in the field of domestic relations with

which the state must deal.’ ”

Thus, Appellant’s contention that in Addison,

supra:

“.. the Court must have assumed that the male

in a dissolution proceedings (sic) is ipso facto the

guilty party” (Appellant’s brief, pp. 8-9)

is erroneous, and the Civil Rights Act of 1964 is not

violated.

Indeed, Appellant’s privileges and immunities and

equal protection arguments similarly grounded, also

fall upon a correct reading of Addison, supra.

Since the Addison (supra) decision cited state in-

terests broader than the protection of “innocent” par-

ties as justification for California’s quasi-community

property statute, the validity of that ruling stands

unaffected by the 1970 proclamation of “no-fault di-

vorce” in California.

The opinion in Addison v. Addison, supra, and the

statute providing for the division of quasi-community

property, Section 4803 California Civil Code, were

correctiy anaiyzed the California Court of Appeal in

the opinion in this case. See Exhibit “A”, Jurisdic-

tional Statement.

10

Therefore, Appellant brings before this Court no

substantial federal question.

Respectfully submitted,

Cominos, SHostaK & EPpstFIN,

By THEopoRE H. ComInos,

Attorneys for Appellee.

November 29, 1976.

(Exhibits Follow)

aad

Py eae

"

~ ‘ <7.

Vapt 5

‘ *

Exhibit “A”

‘Heisler, Stewart, Silver & Daniels

Attorneys at Law

P.O. Drawer 3996

Carmel, California 93921

Telephone: (408) 624-1202

Attorneys for Plaintiff

Superior Court of the State of California

County of Monterey

No. M 7133

Gay Gurs,

Plaintiff,

vs.

Margot W. Gurs,

Defendant.

[Filed Aug. 12, 1975]

COMPLAINT FOR EQUITABLE RELIEF

Plaintiff alleges:

I

Plaintiff is a retired major of the military forces

of the United States and prior to 1963 he was a resi-

dent of the State of Ohio. Since early 1963 he has

been a resident of the State of California.

II

The Defendant is the former wife of the Plaintiff,

and prior to 1963 she was a resident of the Siate of

Ohio. She has been a resident of the State of Cali-

fornia since early 1963.

Ill

On or about June 12, 1939, Plaintiff enlisted in

the Ohio National Guard in Cleveland, Ohio and

Plaintiff’s unit was federalized on October 15, 1940

and thereupon Plaintiff was inducted into the active

military service in the United States Army.

IV

Plaintiff and Defendant were married in Evans-

ville, Indiana on October 6, 1949, which marriage

was dissolved by the Memorandum Decision of the

Honorable Ralph M. Drummond, one of the Judges

of the Superior Court of the State of California in

and for Monterey County in case No. MDR2456,

dated April 20, 1972. Said Judgment was amended

by the Court on May 17, 1972.

V

On the dates hereinafter indicated he was sta-

tioned as a member of the armed forces as follows:

October, 1940 to April 1942

April, 1942 to June, 1942 Fort Belvoir, Virginia

June, 1942 to May, 1943 Camp Crowder, Missouri

May, 1943 to December, 1944 U.S. Army in Europe

December, 1944 to October, 1945 Geiger Field, Washington

Camp Shelby, Mississippi

October, 1945 to November, 1946 U.S. Army in Germany

November, 1946 to May, 1947 Geiger Field, Washington

May, 1947 to May, 1950 U.S. Army in Germany

May, 1950 to June, 1951 Fort Riley, Kansas

June, 1951 to July, 1952 U.S. Army in Germany

July, 1952 to January, 1954 Fort Lewis, Washington

January, 1954 to July, 1957 U.S. Army in Germany

July, 1957 to August, 1957 Fort Hamilton, New York

August, 1957 to June, 1959 Fort Ord, California

June, 1959 to July, 1962 U.S. Army in Germany

July, 1962 to December 31,1962 Fort Ord, California

Vi

Plaintiff retired from service at Fort Ord, Califor-

nia on December 31, 1962. His length of service with

the armed forces covered the period of June 12, 1939

to December 31, 1962, or approximately 2344 years,

credited 24 years for pay purposes by the Depart-

ment of the Army. During that time he and his at

the time wife, were physically present in the State

of Califcrnia twice. The first period from August 20,

1957 to June 5, 1959, that is one year and nine and

one-half months. Their second and only other stay in

California was from July 31, 1962 to December 31,

1962 or five (5) months. Their total stay in Califor-

nia while he was in the service with the U.S. Army

was two years and two and one-half months, or ap-

proximately 1/11th parts of his totai service career.

VII

As a citizen of the State of Ohio, Plaintiff received

a bonus from his home state for World War IT par-

iv

ticipation in 1950. He also received a bonus from his

home state in 1957 for the Korean Conflict. While he

was a citizen of Ohio, he was qualified to receive said

bonuses. However, he was not qualified and did not

receive any bonus from the State of California.

VIII

Plaintiff has in his possession various documents

attesting to the facts hereinabove stated and he also

has in his possession a document indicating that his

name was changed from Serge Gurs to Gay Gurs

which the latter name he is presently known by.

IX

During 1971 while Plaintiff and Defendant resided

in the State of California, the Defendant filed her

Petition for a Dissolution of Marriage in the Su-

perior Court of the State of California, Monterey

County, Case No. MDR2456. The Court acquired ju-

risdiction of Plaintiff herein (Respondent in the

Dissolution matter) on August 24, 1971 and Memoran-

dum of Decision was entered and filed on April 20,

1972 in which the Honorable Ralph M. Drummond,

one of the Judges of the Superior Court, granted an

Interlocutory Judgment of Dissolution of Marriage to

Petitioner in the Dissolution case (Defendant herein)

and among others he found that the military retire-

ment pay of Plaintiff herein was community property

and awarded to Defendant herein (Petitioner in Dis-

solution) 3214 percent of said retirement pay and or-

dered that she should be given her share of 321%

Vv

percent within 10 days after Plaintiff received his

monthly payments.

x

Subsequently the Honorable Ralph M. Drummond,

aforesaid Judge of the Superior Court, amended the

Judgment referred to above in accordance with his

Order of May 17, 1972 and reduced the amount pay-

able to Defendant herein (Petitioner in Dissoiution)

her share in the Plaintiff’s retirement pay to 13/48th

part thereof. Said payment was based on the finding

of the Court that Plaintiff served in the armed forces

24 years and that the parties were married during

that time thirteen (13) years and that Defendant

(Petitioner in Dissolution) was entitled to one-half of

13/24th or 13/48th part of the retirement pay.

XI

Plaintiff submits that while his service with the

armed forces of the United States lasted for a period

of 24 years, and while the parties were married dur-

ing that time for 13 years, however the time spent by

Plaintiff in the State of California amounted only to

two years and two and one-half months or approxi-

mately 1/11th part of his total military service.

XIT

Plaintiff further submits to the Court and requests

that the Court take judicial notice of the fact that

while the State of California is a community property

state, the State of Ohio, of which Petitioner was a

citizen during his military service, is a common law

vi

and a non-cominunity property state and therefore the

awarding to Defendant (Petitioner in dissolution)

13/48th part of Plaintiff’s military retirement pay de-

prives him of due process and of the equal protection

of law under the Constitution of the State of Cali-

fornia as well as of the United States.

Plaintiff is deprived of substantive due process of

law as well as of equal protection of the law since

there is no sufficient close nexus with any underlining

policy objective which would pass constitutional mus-

ter. Plaintiff further alleges that the granting to De-

fendant (Petitioner in the Dissolution case) 13/48th

part of his military retirement pay based on the

13 year marriage of the parties, deprives him of sub-

stantive due process of law and of equal protection of

the law since as a resident of a common law state at

the time when the retirement pay becomes vested in

him, Defendant would have been entitled only to

2.2/48th part of his retirement pay and granting her

a larger share is not rationally related to a legislative

objective that it can be used to deprive Plaintiff of

his status as a resident of a common law state. Be-

cause of that Plaintiff alleges that the action of the

Court here granting Defendant 13/48th part of his

military retirement pay is so arbitrary as to violate

the constitution of the United States and of the State

of California pursuant to the due process clause and

the clause pertaining to equal protection.

Plaintiff submits that said Order of May 17, 1972

in equity and good conscience ought to be corrected

so that Defendant (Petitioner in Dissolution) be

vii

awarded not 13/48th part but only 2.2/48th part of

the monthly payments received by Plaintiff as his

military retirement pay.

XIII

Plaintiff also submits to the Court and requests

that the Court take judicial notice of the fact that

the State of Ohio of which Plaintiff and Defendant

herein were residents at the time when Plaintiff re-

tired from military service judicially determined that

military retirement pay is the separate property of

the person earning it and further that the Court of

the State of California by comity ought to and does

recognize the holding of such sister state.

XTV

Plaintiff further submits to the Court that the De-

fendant herein is a well qualified person to provide

for her own living expenses. That she is an instructor

of the German ianguage at the Defense Language

Institute (DLI) Presidio of Monterey, where she is

employed and classified as a GS-9 earning approxi-

mately $1,200.00 per month. That in addition thereto

she receives other income amounting te approximately

$300.00 per month, a total of $1,500.00 exclusive of

any payment that the Superior Court of Monterey

County ordered Plaintiff to pay her.

Plaintiff further submits that after he had retired

from military service and subsequently thereto he

became a Correctional Office in the State of Califor-

nia assigned to the California Correctional Training

Facility at Soledad, California where he earns ap-

viii

proximately the same amount as Defendant does in

her employment.

XV

Plaintiff submits that in equity and good conscience

he is entitled to a further Order that the Defendant

(Petitioner in the Dissolution) reimburse Plaintiff

for the amounts which she wrongfully received be-

tween May 17, 1972 and the time of the Order to be

entered herein. However, Plaintiff is willing to aban-

don any such claim and ask the Court for the Order:

1. That the amount payable to Defendant as her

share of Plaintiff’s military retirement pay be re-

duced from 13/48th part thereof to 2.2/48th part

thereof ;

2. That costs be awarded to Plaintiff; and,

3. That the Court enter such other and further

Order that equity requires.

Dated: August 11, 1975.

/s/ Gay Gurs

Gay Gurs, Plaintiff

Heisler, Stewart, Silver & Daniels

By: /s/ Francis Heisler

Francis Heisler

Attorney for Plaintiff

Verification

State of California

County of Monterey—ss.

I am the Plaintiff in the above-entitled action; I

have read the foregoing Complaint for Equitable Re-

lief and know the contents thereof; and I certify that

the same is true and correct of my own knowledge,

except as to those matters which are therein stated

upon my information or belief, and as to those mat-

ters I believe it to be true.

I, Gay Gurs, declare under penalty of perjury that

the foregoing is true and correct.

Executed on August 11, 1975, at Carmel, California.

/s/ Gay Gurs

Gay Gurs

Exhibit “6”

[1 C.3d 467 ; 82 Cal Rptr. 489, 462 P.2d 17]

In the Supreme Court

of the

State of California

In Bank

S. F. No. 22695

Betty Richwhite Kulchar,

Plaintiff and Appellant,

vs. :

George Victor Kulchar,

Defendant and Respondent. ;

[ Dec. 23, 1969]

OPINION

Traynor, C. J.—Plaintiff appeals from an order of

the Superior Court of San Mateo County modifying

an interlocutory decree of divorce to relieve defendant

of liability to pay federal income taxes assessed

against the parties on income accruing to plaintiff in

New Zealand.

Plaintiff secured an interlocutory decree of divorce

from defendant on July 3, 1964. The decree included

the disposition of the community and separate prop-

xi

erty of.the parties.' The decree provided, in part:

“Defendant shall indemnify and hold plaintiff free

and harmless in the matter of any monies due any

taxing agency, whether Federal, State or County, for

the calendar years prior to 1964.”

In 1966, following the divorce proceedings, defend-

ant received a tax assessment of approximately

$22,000 of federal income taxes based on theretofore

undisclosed income accumulated during the marriage

by a New Zealand corporation in plaintiff’s name.

Defendant moved to modify the divorce decree to re-

lieve him of any liability for taxes on the New Zea-

land income on the grounds of extrinsic fraud and

extrinsic mistake. After a hearing on defendant’s mo-

tion, the trial court concluded that the tax provision

in the decree “was included and approved by the par-

ties as a result of the mutual mistake of the parties

and further, that there was no intent of the parties

that defendant should pay United States Federal in-

come tax resulting from income to plaintiff in New

Zealand.” The court struck the tax provision from

the decree “because of the mutual mistake of the

parties.”

Under certain circumstances a court, sitting in

equity, can set aside or modify a valid final judgment.

(Olivera v. Grace (1942) 19 Cal.2d 570, 575-576 [122

P.2d 564, 140 A.L.R. 1328]; Caldwell v. Taylor (1933)

1There was no formal property settlement agreement. All pro-

visions of the decree relating to the distribution of property were

submitted to the court on the stipulation of the parties.

xii

218 Cal. 471, 475 [23 P.2d 758, 88 A.L.R. 1194].) This

power, however, can only be exercised when the cir-

cumstances of the case are sufficient to overcome the

strong policy favoring the finality of judgments. “A

basic requirement of an action which can lead to a

valid judgment is that a procedure should be adopted

which in the normal case will give to the parties an

opportunity for a fair trial which is reasonable in

view of the requirements of public policy in the par-

ticular type of case. If this requirement is met, a

judgment awarded in an action is not void merely

because the particular individual against whom it

was rendered did not in fact have an opportunity

to present his claim or defense before an impartial

tribunal. . . . [PJublic policy requires that only in

exceptional circumstances should the consequences of

res judicata be denied to a valid judgment.” (Rest.,

Judgments, § 118, com. a.)

Interlocutory divorce decrees are res judicata as to

all questions determined therein, including the prop-

erty rights of the parties. (Jn re Williams’ Estate

(1950) 36 Cal.2d 289, 292 [233 P.2d 248, 22 A.L.R.2d

716]; Adamson v. Adamson (1962) 209 Cal.App.2d

492, 501 [26 Cal.Rptr. 236]. If a property settlement

is incorporated in the divorce decree, the settlement

is merged with the decree and becomes the final judi-

cial determination of the property rights of the par-

ties. (Broome v. Broome (1951) 104 Cal.App.2d 148,

154-155 [231 P.2d 171].) Thus, the rules governing

extrinsic fraud and mistake apply to alimony awards

and property settlements incorporated in divorce de-

xiii

crees. (Jorgensen v. Jorgensen (1948) 32 Cal.2d 13,

18-23 [193 P.2d 728]; Cameron v. Cameron (1948) 88

Cal.App.2d 585, 595-597 [199 P.2d 443]; Hosner v.

Skelly (1946) 72 Cal.App.2d 457, 461 [164 P.2d 573];

Horton v. Horton (1941) 18 Cal.2d 579, 584-585 [116

P.2d 605]; Hendricks v. Hendricks (1932) 216 Cal.

321, 323-324 [14 P.2d 83]; Godfrey v. Godfrey (1939)

30- Cal.App.2d 370, 378-380 [86 P.2d 357]; Smith v.

Smith (1954) 125 Cal.App.2d 154, 161-164 [270 P.2d

613].)

Extrinsic fraud usually arises when a party is de-

nied a fair adversary hearing because he has been

“deliberately kept in ignorance of the action or pro-

ceeding, or in some other way fraudulently prevented

from presenting his claim or defense.” (3 Witkin,

Cal. Procedure, p. 2124.) “Where the unsuccessful

party has been prevented from exhibiting fully his

case, by fraud or deception practiced on him by his

opponent, as by keeping him away from court, a false

promise of a compromise; or where the defendant

never had knowledge of the suit, being kept in igno-

rance by the cast of the plaintiff; or where an attorney

fraudulently or without authority assumes to repre-

sent a party and connives at his defeat; or where

the attorney regularly employed corruptly sells out

his client’s interest to the other side,—these, and sim-

ilar cases which show that there has never been a real

contest in the trial or hearing of the case, are reasons

for whicn a new suit may be sustained to set aside

and annul the former judgment or decree, and open

the case for a new and a fair hearing.” (United

xiv

States v. Throckmorton (1878) 98 U.S. 61, 65-66 [25

L.Ed. 93, 95].)

The right to relief has also been extended to cases

involving extrinsic mistake. (Bacon v. Bacon (1907)

150 Cal. 477, 491-492 [89 P. 317]; Olivera v. Grace,

supra, at p. 577.) “In some cases ... the ground of

relief is not so much the fraud or other misconduct

of the deferdant as it is the excusable neglect of the

plaintiff to appear and present his claim or defense.

If such neglect results in an unjust judgment, with-

out a fair adversary hearing, the basis for equitable

relief is present, and is often called ‘extrinsic mis-

take.’” (3 Witkin, Cal. Procedure, p. 2128.)

Extrinsic mistake is found when a party becomes

incompetent but no guardian ad litem is appointed

(Olivera v. Grace, supra, at p. 577; Det Tos v. Det

Tos (1951) 105 Cal.App.2d 81, 84-85 [232 P.2d 873];

Winslow v. McCarthy (1918) 39 Cal.App. 337, 340

[178 P. 720]; when one party relies on another to

defend (Weitz v. Yankoski (1966) 63 Cal.2d 849, 855-

856 [48 Cal.Rptr. 620, 409 P.2d 700]; Roussey v. Er-

nest W. Hahn, Inc. (1967) 251 Cal.App.2d 251, 256

[59 Cal.Rptr. 399]) ; when there is reliance on an at-

torney who becomes incapacitated to act (Jeffords v.

Young (1929) 98 Cal.App. 400, 405-406 [277 P. 163];

Smith v. Busniewskt (1952) 115 Cal.App.2d 124, 127-

128 [251 P.2d 697]; Antonsen v. Pacijic Container Co.

(1941) 48 Cal.App.2d 535, 538 [120 P.2d 148]), when

a mistake led a court to do what it never intended

(Sullivan v. Lumsden (1897) 118 Cal. 664, 669 [50 P.

777]; Bacon v. Bacon, supra, at pp. 492-493); when

xv

a mistaken belief of one party prevented proper no-

tice of the action (Aldabe v. Aldabe (1962) 209 Cal.

App.2d 453, 475 [26 Cal.Rptr. 208]; Boyle v. Boyle

(1929) 97 Cal.App. 703, 706 [276 P. 118]; or when

the complaining party was disabled at the time the

judgment was entered (Watson v. Watson (1958) 161

Cal.App.2d 35, 39-49 [325 P.2d 1011]; Saunders v.

Saunders (1958) 157 Cal.App.2d 67, 72-73 [320 P.2d

131]; Evry v. Tremble (1957) 154 Cal.App.2d 444,

447-449 [316 P.2d 49]). Relief has also been extended

to cases involving negligence of a party’s attorney in

not properly filing an answer (Hallett v. Slaughter

(1943) 22 Cal.2d 552, 556-557 [140 P.2d 3]; Turner v.

Allen (1961) 189 Cal.App.2d 753, 757-760 [11 Cal.

Rptr. 630]); and mistaken belief as to immunity

from suit (Barteli v. Johnson (1943) 60 Cal.App.2d

432, 436-437 [140 P.2d 878]).?

Relief is denied, however, if a party has been given

notice of an action and has not been prevented from

participating therein. He has had an opportunity to

present his case to the court and to protect himself

from mistake or from any fraud attempted by his

adversary. (Jorgenson v. Jorgenson, supra, 32 Cal.2d

13 at p. 18; Westphal v. Westphal (1942) 20 Cal.2d

393, 397 [126 P.2d 105]; Gale v. Witt (1948) 31 Cal.

2The decisions in both Hallett and Bartell have been criticized.

(See Comment (1943) 31 Cal.L.Rev. 600.) “The cases on intrinsic

fraud, involving perjury, false documents and other reprehensible

conduct by the adverse party, are far more compelling, yet retief

is uniformly denied for good reason. .. . The Hallett and Bartell

eases involve no true extrinsic factors in the accepted sense, and

they raise serious questions as to the practical finality of any de-

fault judgment.” (3 Witkin, Cal. Procedure, p. 2130.)

xvi

2d 362, 367 [188 P.2d 755]). Moreover, a mutual mis-

take that might be sufficient to set aside a contract is

not sufficient to set aside a final judgment. The prin-

ciples of res judicata demand that the parties present

their entire case in one proceeding. “Public policy

requires that pressure be brought upon litigants to

use great care in preparing cases for trial and in as-

certaining all the facts. A rule which would permit

the re-opening of cases previously decided because of

error or ignorance during the progress of the trial

would in a large measure vitiate the effects of the

rules of res judicata.” (Rest., Judgments, § 126, com.

a.) Courts deny relief, therefore, when the fraud

or mistake is “intrinsic”; that is, when it “goes to the

merits of the prior proceedings, which should have

been guarded against by the plaintiff at that time.”

(Comment, Equitable Relief From Judgments, Orders

and Decrees Obtained by Fraud (1934) 23 Cal.L.Rev.

79, 83-84; see Pico v. Cohn (1891) 91 Cal. 129, 134

[27 P. 537, 25 Am.St.Rep. 159, 13 L.R.A. 336]; Hen-

dricks v. Hendricks, supra, at pp. 323-324.)

Relief is also denied when the complaining party

has contributed to the fraud or mistake giving rise

to the judgment thus obtained. (Hammell v. Britton

(1941) 19 Cal.2d 72, 80 [119 P.2d 333]; Rudy v. Slot-

winsky (1925) 73 Cal.App. 459, 465 [238 P. 783];

Rest. Judgments, § 129.) “If the complainant was

guilty of negiigence in permitting the fraud to be

practiced or the mistake to occur equity will deny

relief.” (Wilson v. Wilson (1942) 55 Cal.App.2d 421,

427 [130 P.2d 782].)

*e

Whether the case involves intrinsic or extrinsic

fraud or mistake is not determined abstractly. “It is

necessary to examine the facts in the light of the

policy that a party who failed to assemble all his evi-

dence at the trial should not be privileged to reliti-

gate a case, as well as the policy permitting a party

to seek relief from a judgment entered in a proceed-

ing in which he was deprived of a fair opportunity

fully to present his case.” (Jorgensen v. Jorgensen,

supra, 32 Cal.2d 13 at p. 19.)

The evidence in the present case establishes that it

is a case in which a party “failed to assemble all

his evidence at the trial.” Defendant testified that

he knew of the New Zealand holdings prior to the di-

vorce and that plaintiff was receiving $640 every four

months from New Zealand. In defendant’s divorce

questionnaire, circulated to determine the extent of

marital property holdings, expenses and income, he

listed as plaintiff’s separate property “50% stock in-

terest in David Lloyd Co., Ltd.—a New Zealand hold-

ing corporation for many subsidiary companies

(cement, coal, paper )—exact worth unknown to defend-

ant—estimate to run into millions of dollars.” In a

letter sent by defendant’s attorney to plaintiff’s at-

torney in which the principal points of the property

settlement were summarized, defendant proposed to

transfer to plaintiff “any interest he may have in her

holdings in New Zealand.” Plaintiff also knew of the

holdings but did not know of their value or their tax

consequences. In 1957 when preparing income tax

returns, an attorney, who later represented defendant

eee

in the divorce action, made some inquiry into the na-

ture of the New Zealand income at the request of

defendant. The attorney abandoned further investiga-

tion after plaintiff stated that a law firm known to

defendant’s attorney had advised her that the New

Zealand income was not taxable. The attorney knew

that the New Zealand holdings were “sizable.” Both

parties testified that the tax provision was included

in the decree because of an audit being conducted by

the Internal Revenue Service with respect to an un-

related transaction by defendant.

Clearly the present case does not involve the fail-

ure of one spouse to disclose fully the assets to be

divided upon separation. (See Taylor v. Taylor (1923)

192 Cal. 71 [218 P. 756, 51 A.L.R. 1074]; Milekovich

v. Quinn (1919) 40 Cal.App. 537 [181 P.2d 256]. The

duty to disclose arises out of the fiduciary relation-

ship between the husband and wife. (Vai v. Bank of

America (1961) 56 Cal.2d 329, 337-340 [15 Cal.Rptr.

71, 364 P.2d 247]; Jorgensen v. Jorgensen, supra, 32

Cal.2d 13 at pp. 19-21.) There is no evidence that the

wife withheld any information relevant to the nature

of her New Zealand income.

The factual situation in the present case is analo-

gous to that in Jorgensen v. Jorgensen, supra. In Jor-

gensen the husband disclosed all known assets of the

parties. The hushand claimed certain assets as his

separate property. The wife and her atturney ac-

cepted the hushand’s statements at face value without

any independent investigation. Subsequent to the di-

vorce decree, however, they learned that some of the

xix

assets the husband claimed as separate property were

actually community property, in which the wife was

entitled to a.one-half interest. The wife was denied

the right to set aside the property settlement agree-

ment. “If the wife and her attorney are satisfied

with the husband’s classification of the property as

separate or community, the wife cannot reasonably

contend that fraud was committed or that there was

such mistake as to allow her to overcome the finality

of a judgment... . Plaintiff is barred from obtaining

equitable relief by her admission that she and her at-

torney did not investigate the facts, choosing instead

to rely on the statements of the husband as to what

part of the disclosed property was community prop-

erty.” ‘(Jorgensen v. Jorgensen, supra, 32 Cal.2d 13

at pp. 22-23; see also, Cameron v. Cameron, supra, 88

Cal.App.2d 585 at pp. 595-597 wherein the holding

of Jorgensen was found controlling.)

In the present case both parties knew of the New

Zealand assets, but the husband and his attorney

chose not to investigate their taxability. The property

settlement agreement expressly covered unknown tax

liability. Having had full opportunity to consider all

income of the wife and its concurrent tax conse-

quences, the husband cannot now complain of the

added tax burden.

The order is reversed.

Peters, J., Torbriner, J., Mosk, J., Burke, J., and

Sullivan, J., coneurred.

McComps, J.—I dissent I would affirm the order of

the trial court.