Opinion
For Opinion on Hearing see, 120 Cal.Rptr. 76, 533 P.2d 204.
Opinion on pages 214-227 omitted.
HEARING GRANTED
Fagan, Klugman, Monroe & Edell and Norman Edell, Beverly Hills, for defendant and appellant.
Refold & Steiniger and Michael M. Steiniger, Encino, for plaintiff and respondent.
HANSON, Associate Justice.
HISTORY
Plaintiff-respondent Mrs. Claire J. Glickman (hereinafter Mrs. Glickman) was married to Gerald Paul Glickman (hereinafter Mr. Glickman). They have two sons, one born January 14, 1948 and the other both March 31, 1949. Both sons are now over 21 years of age. The Glickmans became estranged and separated in August of 1966.
In June of 1967 Mr. Glickman, who was then residing in Portland, Oregon, met defendant-appellant Hilda P. Collins (hereinafter Mrs. Collins). Thereafter he wanted to marry Mrs. Collins so he asked Mrs. Glickman for a divorce. Mrs. Glickman agreed and retained California Attorney Solomon Kleinman (hereinafter Attorney Kleinman) to represent her, which resulted in a property settlement agreement executed on August 4, 1967. This settlement agreement contemplated no guaranty agreement. Thereafter, as part of this settlement agreement, Mrs. Glickman went to Las Vegas, Nevada, to establish residence [114 Cal.Rptr. 800] in order to obtain a Nevada divorce. Attorney Kleinman referred her to Attorney Harry F. Publow (hereinafter Attorney Publow) who represented her in the Nevada proceedings. It was agreed that Mr. Glickman would pay expenses incurred by Mrs. Glickman while in Las Vegas obtaining the divorce.
On September 28, 1967, while Mr. Glickman was living with defendant Mrs. Collins in her house in Portland, Oregon, awaiting Mrs. Glickman's completing of the Nevada residency requirement and the obtaining a divorce, Mrs. Collins received the following covering letter from Mrs. Glickman's Nevada counsel, Attorney Publow:
'September 25, 1967
'Mrs. Peggy Collins
9897 S.W. Arborcrest
Portland, Oregon
'Dear Mrs. Collins:
'Enclosed herewith please find a Guaranty Agreement which I have been instructed by Mrs. Glickman to send to you for your signature.
'As soon as this agreement has been executed by you, Mrs. Glickman has agreed to sign the property settlement agreement, a copy of which is attached to the Guaranty, and to go ahead with her divorce proceedings here in Nevada. Without such an agreement, however, Mrs. Glickman strongly feels that her husband will never perform the obligations called for under the agreement and she, therefore, feels that it would be in her best interests to drop the Nevada proceedings and commence an action for separate maintenance against her husband, either in Oregon or elsewhere.
'Please let us hear from you at your earliest convenience since Mrs. Glickman will have completed her residency requirements by Tuesday, September 26, and is extremely anxious that her divorce proceedings here be either consummated or dropped.
'Very truly yours,
'RUDIAK & PUBLOW
'By
Harry F. Publow'
The guaranty agreement which was attached to this forwarding letter (with a copy of a property settlement agreement executed September 22, 1967, by the Glickmans) was executed by Mrs. Collins and returned to Attorney Publow in Las Vegas, Nevada.
In addition to many standard provisions, the property settlement agreement gave custody of the minor children to Mr. Glickman subject to the reasonable right of visitation by Mrs. Glickman. It provided that Mr. Glickman pay the first Mrs. Glickman $400 per month alimony for a five-year period and $200 per month per child during periods of custody by Mrs. Glickman.
In the words of Professors Crampton and Currie: 'The most troublesome use of public policy comes when it is employed as a cloak for the selection of local law to govern a transaction having important local contacts. Resort to the concept is beguilingly easy and does not demand the hard thinking which careful formulation of narrower, more realistic, choice of law rules would require.' (Crampton & Currie, Conflict of Laws, (West Pub.1968), p. 147.) In any event, there is no general California public policy against enforcement of contracts illegal in California but valid where made and to be performed. (1 Witkin, Summary of Cal.Law (8th ed.) Contracts, §§ 72-74.) There is no broad and clear California public policy against enforcement of all contracts in contemplation of divorce as the cases distinguished in the majority opinion themselves attest.
The guaranty agreement, which is the basis of the case at bench, reads as follows:
'GUARANTY AGREEMENT
'THIS AGREEMENT made this 28th day of September, 1967, by and between PEGGY COLLINS, hereinafter called 'Guarantor' and CLAIRE JOANNE GLICKMAN, hereinafter called 'Glickman';
'WITNESSETH:
'WHEREAS, CLAIRE JOANNE GLICKMAN and GERALD PAUL GLICKMAN propose to enter into a certain Property Settlement Agreement, a copy of which is attached hereto as Exhibit 'A' and by this reference made part hereof, and
'WHEREAS, GLICKMAN is unwilling to settle her marital and community property rights in accordance with the terms of said Property Settlement Agreement without an adequate guarantee that her husband will perform the support and maintenance provisions mentioned therein, and
'WHEREAS, Guarantor is willing to guarantee the performance of such provisions [114 Cal.Rptr. 801] on the part of GERALD PAUL GLICKMAN;
'NOW, THEREFORE, in consideration of the Execution of said Property Settlement Agreement by GLICKMAN and for other good and valuable considerations, receipt of which are hereby acknowledged I, the undersigned Guarantor, do for myself, my heirs, executors, administrators and assigns, guarantee and warrant unto GLICKMAN, the prompt payment of the sum of Four Hundred Dollars ($400.00) per month for a period of five years by GERALD PAUL GLICKMAN to GLICKMAN unless GLICKMAN should remarry or die prior to the expiration of the said five year period, and do further guaranty and warrant the payment by GERALD PAUL GLICKMAN to GLICKMAN of the sum of Two Hundred Dollars ($200.00) per month per child during such period as either or both of the children of GERALD PAUL GLICKMAN and GLICKMAN shall be in the custody of GLICKMAN until such child or children reaches the age of 21 years or otherwise become self-supporting.
'In the event default is made in the payment of any of the aforementioned sums as they become due, Guarantor hereby promises and agrees to pay the same to GLICKMAN on demand, together with all costs, expenses and attorneys fees incurred by GLICKMAN in collecting the same, whether against Guarantor or the said GERALD PAUL GLICKMAN.
'The Guarantor does hereby waive notice of the acceptance of this Guaranty and of any defaults by GERALD PAUL GLICKMAN under the terms of said Property Settlement Agreement, and agrees that this Guaranty shall be absolute and shall continue in full force and effect until all the obligations under said Property Settlement Agreement have been fully satisfied.
'IN WITNESS WHEREOF, we have set our hands the day and year first above written.
[Signed] PEGGY COLLINS
'GUARANTOR
[Signed] CHARLES A. SCHWARTZ
'Witness. 8485 SW Canyon Rd.
Portland Oreg.
[Signed] CLAIRE JOANNE
GLICKMAN
'CLAIRE JOANNE GLICKMAN
'STATE OF OREGON
COUNTY OF WASHINGTON
ss.
'BE IT REMEMBERED, That on this 28th day of September, 1967, before me, the undersigned, a Notary Public in and for said County and State, personally appeared the within named Peggy Collins known to me to be the identical individual described in and who executed the within instrument and acknowledged to me that she executed the same freely and voluntarily.
'IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written.
[Signed] R. H. GOLIEB
'Notary Public for Oregon.
'8485 SW Canyon Rd.
Portland Oreg.
'My Commission expires 3/18/1968'
Upon receipt of the guaranty agreement from Mrs. Collins, the first Mrs. Glickman on October 3, 1967, obtained a Nevada divorce.
On October 7, 1967, Mr. Glickman and Mrs. Collins were married--Mrs. Collins becoming the second Mrs. Glickman. This marriage was of short duration--less than a year. She divorced him in September of 1968.
Mr. Glickman defaulted on his alimony and support payments agreed upon in the property settlement agreement with the first Mrs. Glickman, and she obtained a judgment against him for $8,852.80.
[114 Cal.Rptr. 802]THE CASE AT BENCH
All three of the participants in this triangle, the first and second Mrs. Glickman, plaintiff and defendant herein, and Mr. Glickman, now reside in California.
The first former Mrs. Glickman filed a superior court action on October 3, 1969, captioned 'Complaint on Guaranty and For Declaratory Relief,' naming Mrs. Collins, the second former Mrs. Glickman, as the only defendant. The complaint prays for judgment against Mrs. Collins in the amount owed by Mr. Glickman pursuant to the property settlement default judgment in the sum of $8,852.80 and future defaults by Mr. Glickman and for interest and attorney's fees based on the 'guaranty agreement,' hereinbefore set forth in haec verba.
Defendant's answer to the first amended complaint, in addition to a general denial, sets up affirmative defenses of failure of consideration; illegal and void being against public policy; unenforceable by reason of title 13, part 4, division third of the Civil Code; failure to pursue remedies against Mr. Glickman; unenforceable by reason of fraud, duress, undue influence and misrepresentations of Mr. Glickman; laches; and unclean hands.
At the nonjury trial of the matter, the plaintiff (Mrs. Glickman) testified that the idea to obtain a 'guaranty agreement' from Mrs. Collins was hers, because of previous experience with Mr. Glickman and that she therefore, while she was living in Las Vegas establishing residency requirements, instructed her Nevada counsel, Attorney Publow, to prepare such a document.
(R.T. page 36, line 24 through page 37, line 9.)
Choice of law to be utilized to test the enforceability of a contract must be made by utilization of the principles of interest analysis. (Buskuhl v. Family Life Ins. Co., 271 Cal.App.2d 514, 76 Cal.Rptr. 602.) Here Oregon may have an interest in the protection of its resident, husband, against enforceability of an illegal contract if the contract here involved is illegal under Oregon law. Here, also, Nevada either has or has not an interest depending upon whether the contract is illegal so that a Nevada resident should not be permitted to enter into it and whether as a matter of fact respondent's residence in Nevada was transitory or relatively permanent. If both states have an interest and their law as to the validity of the contract is different, there will be a 'true conflict' so that classic Currie doctrine might dictate application of the law of the forum. If either Nevada or Oregon has no interest, or if their respective law governing the validity of the contract is the same, there will be a false conflict so that, depending upon the particular situation, either the law of Nevada or Oregon will control. Nothing in the record shows that California has any interest in the transaction except as a forum. It is clear that the situation not having been developed in the trial court, this court cannot proceed upon what would otherwise be the correct analytical approach to the problem.
The defendant (Mrs. Collins) testified that she had been divorced from Mr. Collins for two years when she met Mr. Glickman on June 7, 1967. She was living alone in a house she owned. She and Mr. Glickman decided to get married but he did not tell her he was married until after she asked him to move into her home with her. Mrs. Collins never met the first Mrs. Glickman until they met in the corridor of the courthouse at the trial of the instant case. Mrs. Collins testified that she did [114 Cal.Rptr. 803] not comprehend what the guaranty agreement contained; that Mr. Glickman told her that it meant that before he could donate any money to their household, he would first have to meet his obligations to the first Mrs. Glickman.
(R.T. page 76, line 15 through page 77, line 8.)
To quote Felix Frankfurter: 'If judges want to be preachers, they should dedicate themselves to the pulpit; if judges want to be primary shapers of policy, the Legislature is their place.' (Frankfurter, Of Law and Men (New York 1957).) Resisting the urge to preach or legislate, I have applied the existing law to the case at bench.
(R.T. page 80, line 11 through page 82, line 17.)
Mr. Glickman testified that before he married Mrs. Collins, one son was in 'Haight-Asbury' in San Francisco living in a hippie commune and the other son was living with Mrs. Glickman. After he married Mrs. Collins, both boys came to live in Portland with them in Mrs. Collins' house. He testified that he told Mrs. Collins she had to sign the guaranty agreement or Mrs. Glickman wouldn't go ahead with the divorce.
(R.T. page 108, line 14 through page 110, line 25.)
[114 Cal.Rptr. 804]On December 19, 1972, the court below found in favor of Mrs. Glickman, the first former wife (plaintiff), and against Mrs. Collins, the second former wife (defendant), in the sum of $8,852.80 with 7 percent interest and attorney's fees in the amount of $1,500.
Defendant (Mrs. Collins) appeals.
ISSUES
On appeal defendant contends the guaranty agreement sued on is against public policy and therefore is void, illegal and unenforceable; fails for lack of consideration; and is unenforceable under the suretyship laws of California.
DISCUSSION
Is the Guaranty Agreement Against Public Policy Rendering It Void and Unenforceable?
The guaranty agreement, although sued on in California, was (1) prepared by plaintiff's counsel in Nevada; (2) executed by the defendant in Oregon; and (3) approved by a Nevada court as part of a property settlement agreement in a divorce action.
The threshold question posed is whether or not California courts under the full faith and credit clause of the federal Constitution are bound to acknowledge it if not against the public policy of Oregon or Nevada but against the public policy of California.
In Griffin v. McCoach, 313 U.S. 498, at page 506, 61 S.Ct. 1023, at page 1027, 85 L.Ed. 1481, the Court said: '. . . It is 'rudimentary' that a state 'will not lend the aid of its courts to enforce a contract founded upon a foreign law where to do so would be repugnant to good morals, would lead to disturbance and disorganization of the local municipal law, or in other words, violate the public policy of the state where the enforcement of the foreign contract is sought.' [Emphasis added.] Bond v. Hume, 243 U.S. 15, 21, 37 S.Ct. 366, 368, 61 L.Ed. 565. Applying that reasoning, this Court affirmed the federal court in [114 Cal.Rptr. 805] following Texas' decisions which refused to enforce a valid foreign contract of guarantyship against a married woman. Union Trust Co. v. Grosman, 245 U.S. 412, 38 S.Ct. 147, 62 L.Ed. 368.'
Accordingly, we conclude that neither the full faith and credit clause nor the Fourteenth Amendment of the federal Constitution compels a California court to enforce the guaranty agreement if it is obnoxious to the public policy of this State, even if not against the public policy of the states of Oregon and Nevada.
In Beach v. Arblaster, 194 Cal.App.2d 145, at page 160, 14 Cal.Rptr. 854, at page 863, the court said: '. . . Any agreement which has for its object the dissolution of the marriage contract or facilities such dissolution is void as contra bonos mores. [Citations.]' The court in Hare v. McGue, 178 Cal. 740, at page 741, 174 P. 663, said: '. . . [T]he law is extremely solicitous about the maintenance of the marriage relation, and will not tolerate or sanction any contract which by its terms or obvious tendency has for its object the securing of a divorce.'
In the case at bench, the covering letter dated September 25, 1967 (supra), sending the guaranty agreement to Mrs. Collins conveyed the definite assertion that the first Mrs. Glickman, would drop the Nevada divorce proceedings and commence a separate maintenance suit, which would prevent the planned marriage of Mrs. Collins to Mr. Glickman, unless she (Mrs. Collins) signed the agreement. This communication could reasonably be stated to convey the meaning that the first Mrs. Glickman would divorce Mr. Glickman in exchange for the guaranty agreement executed by Mrs. Collins, and thus the 'object' of the guaranty agreement was to directly or indirectly facilitate the dissolution of an existing marriage, although the marriage was beyond restoration.
Counsel for plaintiff-respondent relies on the cases of Hill v. Hill, 23 Cal.2d 82, 142 P.2d 417; Howard v. Adams, 16 Cal.2d 253, 105 P.2d 971; and Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613. We hold these three cases are factually distinguishable from the unique and bizarre circumstances encountered in the case at bench.
The Hill case merely approved a property settlement agreement between a husband and wife made in contemplation of divorce where the legitimate objects of the marriage had been destroyed. In the instant case, the defendant Mrs. Collins was a third party who, at the time of the execution of the guaranty agreement, had no relationship by blood or marriage with either Mr. or Mrs. Glickman. She (Mrs. Collins) had never talked to or met plaintiff Mrs. Glickman until the trial of the case.
The Howard case involved a breach of an alleged oral contract made by an aunt for the support and maintenance of her niece. The plaintiff-niece had a very close relationship with the defendant-aunt, resembling that of a 'mother and daughter.' The niece had lived with and was supported by the aunt for years before her (the niece's) secret marriage. The appellantaunt proposed the manner in which the niece would proceed in obtaining a divorce in order to avoid local publicity. Thus, where the divorce was to be obtained, not whether or not to get a divorce, was a key factor. This allegedly resulted in the plaintiff-niece 'giving up her possible right to alimony and support at the time she secured her divorce.' In the case at bench, the first Mrs. Glickman, unlike the niece, as it developed gave up nothing as in all probability Mr. Glickman would also have defaulted on a separate maintenance decree.
In the Spellens case, the defendant, an unmarried man, allegedly promised a married woman that he would divide his property with her and support her children if she married him and represented to the plaintiff that if she obtained an interlocutory divorce decree they could be legally married in Mexico and it would be a valid marriage in Mexico and anywhere. Thereafter they were married in Mexico by an attorney and they lived together [114 Cal.Rptr. 806] as husband and wife. The defendant, Mr. Spellens, later contended they were not legally married. The court held that a contract between an unmarried man and a married woman under which he promised to divide his property with her and support her children if she married him was not against public policy because the divorce was merely incidental to the agreement, and not the main purpose of the agreement. The majority opinion in the Spellens case stated at 49 Cal.2d page 225, at 317 P.2d at page 622, that '. . . the divorce from Robert was merely incidental to the agreement.' In the instant case, Claire's divorce from Gerald was not merely incidental to the agreement; Claire asserted she would not divorce Gerald unless Hilda agreed to guarantee his alimony and child support payments--no guaranty agreement, no divorce. Hilda signed the agreement. Within five days Claire divorced Gerald.
Therefore, we hold that an agreement by an unmarried person, as present in the case at bench, to guarantee the payment of alimony and support to a married person if that person will divorce his or her spouse so that he or she can marry the other person's spouse, even though the former marriage was beyond restoration, is repugnant, abhorrent and obnoxious to the public policy of this State and is therefore void and unenforceable.
Although not binding upon this court, a similar situation occurred in the State of New York. In Gould v. Gould, 261 A.D. 733, 27 N.Y.S.2d 54, the reviewing court reversed the lower court's finding in favor of plaintiff and dismissed the action which was based on a written guaranty agreement whereby the defendant guaranteed payment of monthly sums which plaintiff's husband agreed to pay plaintiff under a separation agreement upon condition that the plaintiff wife promptly procure a divorce from her husband, who was the defendant's son. The court held that the guaranty agreement was void as against 'public policy,' notwithstanding the fact that the plaintiff and husband were living apart when the agreement was signed. The court stated at page 55 of 27 N.Y.S.2d: '. . . Patently, the contract is intended to facilitate the obtaining of a divorce and to promote the dissolution of the marriage relationship between plaintiff and defendant's son. It is well-settled that such a contract is void as against public policy. There is an intimate connection between the sanctity of the marriage relationship and the well-being of society. The law favors marriage and it does not sanction contracts designed to promote its dissolution by lending itself to their enforcement.'
In addition to the California law heretofore discussed, we make two additional observations:
First, Mencius (372-289 B.C.) made the sage observation that '. . . The root of the state is in the family.' President Garfield (1831-1881) stated: 'The sanctity of marriage and family relation make the cornerstone of our American society and civilization.' Today the institution of marriage remains of extremely important significance in our society and sound public policy dictates that it be fostered and protected. A fortiori, notwithstanding the ease with which a dissolution may be obtained by either spouse under recent California family law statutes which abolish fault when there exist 'irrevocable differences, which have caused the irremedial breakdown of the marriage,' separation or dissolution (divorce) are extremely serious steps affecting not only that marriage but the institution of marriage as a whole and therefore should not be subject to the manipulation attempted in the instant case, if the sanctity of the institution of marriage itself is to be maintained and preserved.
Second, the record on appeal paints a picture of two females of the species bartering over the person of a male of the species as if he were a chattel--not unlike [114 Cal.Rptr. 807] a slave. The former wife, wanting financial security, agreeing to 'liberate' or 'manumit' her husband from the bonds of matrimony so the prospective second wife, wanting a husband, could marry him if the one in the wings would guarantee her alimony. It would be no less odious if the genders were switched. There is a difference between 'dissolution' and 'manumission.' 'Dissolution' is permitted. 'Manumission' went out over 100 years ago when slavery was swept from the American scene by the bloody Civil War, the Emancipation Proclamation and the Thirteenth and Fourteenth Amendments to our federal Constitution.
Having reversed the judgment on the ground of contra bonos mores, it will be unnecessary to decide the other two contentions advanced by appellant. However appellant's arguments on these two issue are also persuasive--that not only did Mrs. Collins obtain a bad bargain, it was insufficient legal consideration; also, the creditor's (Mr. Glickman's) statements to the surety (Mrs. Collins) constituted a breach of his duty of good faith and fair dealing owed the surety which renders the guaranty agreement unenforceable under the suretyship laws of California.
WOOD, P. J., concurs.
THOMPSON, Associate Justice (dissenting).
I dissent.
While agreeing with the majority that the issues in the case at bench are to be tested by California law, I reach that agreement not because of any compelling policy of the California forum that precludes ordinary choice of law principles 1 or because application of those principles necessarily leads to that result. 2 I do so only because the choice of law problem which underlies the case at bench was unrecognized in the trial court as it was by counsel on appeal. The issue was litigated below as if California law tested the enforceability of the contract. Hence error in application of choice of law rules was invited. Tested by today's California law, the contract of guaranty which is here before us is not unenforceable as contrary to public policy. In Spellens v. Supreme Court dealt with the validity of an oral agreement by which the defendant promised the plaintiff, who had not yet filed for divorce, that if she would divorce her then-husband and marry defendant, defendant would divide his property with her [114 Cal.Rptr. 808] and support her children. The high court held that the contract was not unenforceable as contrary to public policy. It said: 'Regardless of what the authorities may have heretofore stated in regard to the validity of an agreement made in contemplation of divorce, a recent statement of this court of the general policy on this subject, is pertinent here: 'Public policy seeks to foster and protect marriage, to encourage the parties to live together, and to prevent separation. [Citations.] But public policy does not discourage divorce where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed. [Citation.]'' (49 Cal.2d 210, 224, 317 P.2d 613, 621.) Here the trial court found on substantial evidence that respondent, at her husband's request, had initiated divorce proceedings before appellant entered into the contract of guaranty and that respondent sought the guaranty because her husband told her that she would not collect anything on a negotiated property settlement. Those findings render the case at bench indistinguishable from Spellens on any relevant basis. Hence, Spellens controls our action.
Appellant's other contentions of lack of consideration for the guaranty and of defense to enforceability because of violation of a continuing duty of good faith and fair dealing and failure to comply with Civil Code section 2845 are not supported by the record. She has not shown that the second property settlement agreement which resulted in the guaranty was not required because of a defect in the preceding agreement when tested by Nevada law. Hence, a detriment to respondent, promissee, appears in her execution of the second property settlement. The trial court found no breach of an implied covenant of good faith and fair dealing, and the evidence does not compel such a finding. Neither does the evidence compel a finding that appellant required respondent to proceed against her husband, the primary obligor, or that respondent did not so proceed.
I would affirm the judgment. 3
'THE COURT: Now, do I understand, then, Mrs. Glickman, that the idea, are you saying, came from your experience previously with your husband?
'THE WITNESS: Yes.
'THE COURT: All right, proceed.
'Q BY MR. EDELL: This was your idea to get the guaranty agreement?
'A Yes.
'Q Mr. Publow didn't tell you to get it?
'A No.
'Q Your husband didn't tell you?
'A No.
'Q Mr. Kleinman didn't tell you to get it?
'A Nobody.'
'Q [BY MR. EDELL] Between the time you met him and the time you married him you had decided to get married to each other; is that correct?
'A [MRS. COLLINS] Yes.
'Q And at that time you knew he was presently married?
'A No, I did not.
'Q When was the first time you found out he was married at the time?
'A After I asked him to move into my home.
'Q When was this, chronologically, if you can remember?
'A About a month after I met him.
'Q And, at this time, you found out he was married; is that correct?
'A Yes, he finally told me.
'Q Had you ever met the Plaintiff in this matter at that time?
'A I don't understand the question.
'Q Had you ever met Mrs. Glickman, the Plaintiff, at that time?
'A No, I had not.
'Q When was the first time you ever saw her?
'A In the corridor here in the court two weeks ago.'
(R.T. page 91, line 24 through page 92, line 3.)
'Q [BY MR. STEINIGER] When you first met Mr. Glickman he lied to you about his marital status, didn't he?
'A That's right.
'Q And, as a matter of fact, he repeated that lie to you on more than one occasion; isn't that true?
'A He just simply told me he was not married.
'Q That was a lie, wasn't it?
'A Yes sir.'
'Q BY MR. EDELL: Mrs. Collins, did you ever have discussions with Mr. Glickman while the two of you were together regarding any guaranty agreement?
'A No.
'Q Did you ever sign any document for Mr. Glickman?
'A No, not that I recall.
'Q Did the Glickman boys ever reside with you in your home?
'A Yes, sir, they did.
'Q Were they both boys or just one of them?
'A Both boys.
'Q For what period of time?
'A I am not positive about the time. Michael, I believe, was with us about a month.
'Q How about Sandy?
'A And Sanford a little longer because I put him in high school.
'Q Did you kick these boys out of your house?
'A No, sir.
'Q Did the boys leave your house?
'A Yes, they did.
'Q What were the circumstances of, let's say, Michael's leaving, for instance?
'A Well, Michael said that if we wouldn't let him leave he would run away. We didn't want that so his father put him on a plane and sent him back to Los Angeles where he wanted to go.
'Q What about Sandy?
'A And Sanford didn't want to stay in school. I asked him why and he said that the boys were too square and he would rather go back to Los Angeles.
'THE COURT: Read that.
(Answer read.)
'Q BY MR. EDELL: Did you ever make any payments whatsoever to Mrs. Glickman?
'A No, sir.
'Q Referring back to the alleged guaranty agreement I notice attached thereto, Mrs. Collins, is a [114 Cal.Rptr. 808] notary statement that says you appeared in front of a notary to have this agreement notarized; do you recall appearing in front of a notary and swearing to the notary that you signed a particular document that he notarized your signature?
'A Yes, I do remember taking it to a notary.
'Q Do you know what kind of paper it was you took to a notary?
'A No, I do not.
'Q Did anyone ever inform you what that paper contained?
'A Yes.
'Q Who?
'A Mr. Glickman.
'Q What did Mr. Glickman say?
'A He just told me that it meant that before he could donate any money to my household he would have to take care of his alimony and his obligations to the former Mrs. Glickman.
'Q Did you have any further discussions regarding that piece of paper?
'A No, sir. He just said that it had to be signed and sent right back.
'Q What were you doing at the time?
'A I was sitting at my desk doing some work on checks and bills and things.
'Q And this was where?
'A In Portland, Oregon, in my home.'
'Q Let me interrupt you. What do you mean by 'we'?
'A Mrs. Glickman and myself.
'Q All right.
'A After we had come to an agreement and the property settlement had been drawn up and signed by the two of us and Mrs. Glickman then proceeded to go to Las Vegas to initiate divorce proceedings, when she got to Las Vegas there were several telephone calls to our home and to the home in Portland from Mrs. Glickman in Las Vegas, using threatening language that she wouldn't proceed with the divorce unless she received more money, as far as maintaining her in Las Vegas, and this went on just about every two or three times a week.
'Q Who received these calls?
'A I did.
'Q Did Mrs. Collins ever receive these calls?
'A No, I did. These calls came to me and, of course, this money was sent above and beyond what was originally promised her to maintain her in Las Vegas. Everything was, as far as I was concerned, all set and agreed upon and settled and there was nothing more until, out of a clear blue sky, with about 10 days left for her residency to get a divorce, this thing came, as I say, out of nowhere, and it struck me like a bolt of lightning.
'Q You say 'this thing came'?
'Q This document. This guaranty.
'Q Let me finish my question. When you say 'this thing came', how do you mean it was transmitted to you?
'A Special delivery letter.
'Q Through the U.S. mail, yes.
'A Through the U.S. mail yes.
'Q Who opened the mail the day that letter came to the Oregon address?
'A I did.
'Q Was it generally your duty or your design to get the mail?
'A No. It was just habit, something I did everyday. I went to the mailbox and picked up the mail.
'Q All right. Was this guaranty agreement in the same envelope as the letter that accompanied it?
'A That, I don't recall, Mr. Edell. I do not--it may have been and may not have been. It may have been under separate cover. I don't know.
'Q Did you have any conversation with Mrs. Collins regarding the contents of that agreement?
'A Well, I read it over very carefully and I did say to Mrs. Collins, 'We are being blackmailed.' Mrs. Collins, of course, at the time, didn't understand what I was talking about and I dropped it and then I think it was the same evening as she was sitting at her desk writing out some bills that I put this thing in front of her and said, 'Honey, you've got to sign this and have it notarized and send it to As Vegas or else Claire Won't go ahead and get the divorce.'
'Q And did she sign that?
'A I don't think until the next morning. It was either the next morning or the next afternoon she signed it and took it down to a notary near our home and had it notarized and gave it back to me and I put it in an envelope and mailed it right back to Mr. Publow in Las Vegas.
'Q Did you discuss the contents of the agreement with Mrs. Collins?
'A Not completely, no.
'Q Well, if not completely, in any possible way?
'A Well, yes, in the way of saying that she wants Peggy to guarantee my paying the $400 a month alimony. and that--and child support and I said, 'Don't worry about it, honey,' words to that effect, and Peggy did sign it and had it notarized and gave it back to me and I sent it back to Las Vegas.'
The plaintiff in an effort to sustain the validity of the agreement argued that when the guaranty agreement was executed she and her former husband had been living separate and apart. The court in rejecting this argument said at page 56: '. . . Whether or not the parties be separated, the law none the less remains zealous to preserve the marriage status and will not countenance a contract, the direct tendency of which is to wholly dissolve the marital relationship.'