# motion to dismiss — Gurs v. Gurs

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## Record

- **Collection:** Supreme Court brief
- **Document type:** motion to dismiss
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1031

## Text

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
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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

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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)

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0820%3A2. Public record. Not legal advice.