Opinion
Page __
__ Cal.App.2d __ 212 P.2d 621 BECKER v. BECKER. Civ. 17138. California Court of Appeals, Second District, First Division Dec. 29, 1949.Hearing Granted Feb. 23, 1950.
Subsequent opinion 233 P.2d 479.
[212 P.2d 622] Charles Murstein and Noel Edwards, Los Angeles, for appellant.
Kesler & Woodward, Los Angeles, for respondent.
DRAPEAU, Justice.
Plaintiff was married to defendant in 1911. They lived together until 1936, when plaintiff filed his complaint for divorce. The defendant wife was granted an interlocutory decree upon her cross complaint for cruelty; awarded custody of the then minor son of the parties; $85 per month for his and her support; and an interest in community real property.
The dispute in this case is over the real property, and the application to that dispute of Paragraph 5 of the interlocutory decree, which reads as follows: 'That within two years from the date of this interlocutory decree of divorce, cross-defendant shall pay to cross complainant, the sum of Six Hundred Twenty-five and 00/100 Dollars ($625.00), in cash, said sum representing one-half ( 1/2) the estimated value of said two and one-half (2 1/2) acres of land, community property of the parties hereto; that on the payment by cross-defendant of said sum of $625.00, cross-complainant will execute a good and sufficient instrument of conveyance to cross-defendant, or to such person or persons as he may direct, to all her right, title and interest in and the said two and one-half (2 1/2) acres of land; that until such conveyance is made, cross-defendant shall pay all taxes that may be or have been assessed or levied against said real estate.' The interlocutory decree was entered May 12, 1937; final decree followed June 11, 1938.
Plaintiff paid to his former wife $85 per month, both before and after the minor came of age. He paid the taxes on her real property, and according to his affidavit, spent approximately $1,000 filling and leveling the land. But he did not pay $625 to the wife, as directed in the interlocutory decree, and she did not convey her interest in the land to him.
In 1948, more than ten years after the interlocutory decree, plaintiff was offered $24,750 for the property. He then tendered to defendant $625, together with interest, and requested her to convey to him. This request was refused.
The matter came before the trial court upon a motion by the plaintiff for an order compelling the defendant to convey to him her interest in the land, according to the terms of the interlocutory decree. The court by minute and formal order directed that the property be sold and that the purchase price be divided between the former husband and wife, after deducting taxes and expenses of improvements paid by [212 P.2d 623] plaintiff, and expenses of sale. From these orders plaintiff appeals.
Plaintiff contends that Paragraph 5 of the interlocutory decree is a continuing contract, and that he is entitled to a deed at any time upon payment of $625; that the interlocutory decree is a conclusive judicial determination of the rights of the parties; a contract between them; and res judicata. He argues that before the expiration of two years he could not have been punished for contempt for not paying $625; that after that time he could have been cited for contempt, but nothing was done about it by the defendant; and that, anyhow, until the offer of purchase was made he was financially unable to pay. His affidavit sets forth that the payments of $85 a month were hard for him to make out of a fireman's pension of $100 a month, and meager earnings on the side.
Defendant contends that if the decree intended an option, it was for two years only; that now it would be inequitable to allow plaintiff to acquire the property for $625; and that plaintiff is estopped by laches to acquire defendant's interest in the property for that sum at this time.
It is apparent that the purpose of the interlocutory decree was to divide the community real estate equally. The decree fixed its then value and provided that one would get it upon payment of one half of its value to the other. Because of the failure of the plaintiff to comply with the contract embraced in the interlocutory decree, defendant has been deprived of the use of the money ordered paid to her for all these years. On the meantime the property has enhanced in value manifold. If the defendant had had the $625 when it should have been paid, she might have devoted the proceeds of her community one half of the property to some investment which would perhaps have enhanced in value as rapidly.
Certain fundamental propositions should be stated to reach a proper solution of this question.
First, the interlocutory decree is a final judgment, and so far as it speaks, is conclusive of the property rights of the parties. Code Civ.Proc. sec. 1908; Hamilton v. Hamilton, 83 Cal.App.2d 771, 189 P.2d 722; Spahn v. Spahn, 70 Cal.App.2d 791, 162 P.2d 53.
Secondly, the decree is not ambiguous or uncertain. Within two years from its date, the husband is directed to pay the wife $265, for which she is to convey the property to him or to his nominee.
Thirdly, the husband failed to obey the order. Now he seeks to compel conveyance by the wife in accordance with the order that for eleven years he disregarded.
An interlocutory judgment of divorce, so far as it determines the rights of the parties, is a contract between them. London Guarantee & Accident Co. v. Industrial Accident Comm., 181 Cal. 460, 184 P. 864. This contract may not be enforced because of the failure of the plaintiff to comply with its plain terms. It is elementary that an agreement to purchase property ends with the time expressed in which the optionee or purchaser may exercise that right. 25 Cal.Jur. 521, and cases cited. In an agreement in which the conveyance and payment were to be fixed by the vendees' demand, it was held that such demand must be made within a reasonable time. Smith v. Bangham, 156 Cal. 359, 104 P. 689, 28 L.R.A.,N.S., 522; and see for a statement of the rule Hughes v. Heffner, 29 Cal.App.2d 382, 84 P.2d 540.
No matter what view may be taken of the effect of the order in this case, plaintiff lost his right to purchase. If it was his obligation to pay $625 within two years, he is out; if the payment was to be made within a reasonable time, he is also out, because the order of the trial court on his motion finds against him on that point.
Now, it is but fair and equitable to divide the community property, as the trial court originally tried to do; but upon its present value. The decree presents a constructive condition precedent which the husband failed to perform. He waived performance by the wife and left himself a tenant in common with her. Thus construing the contract, it follows that the present orders implemented the intent of the interlocutory decree:--to divide the [212 P.2d 624] community property equally, and in case the husband failed to pay the then value of the wife's share within two years, to direct its equal division later, either in kind or money.
The order are affirmed.
WHITE, P. J., and DORAN, J., concur.