Wolff v. Wolff
Wolff v. Wolff
Opinion of the Court
This is an appeal from a judgment denying a motion to modify a divorce decree.
Under the terms of a property settlement agreement it was provided that the respondent pay to appellant $18,400 in the following manner: $13,600 forthwith and $4,800 in installments of $200 a month, commencing on December 1. 1953, the last payment to be made on November 1, 1955. The agreement further provided that each of the parties released and absolved and waived any and all rights to support, maintenance or alimony from the other, but provided in paragraph (7) as follows: “Except as hereinafter in this paragraph provided, each party promises and agrees to, and does hereby release, absolve and waive any and all rights to support, maintenance or alimony from the other; provided, however, that in the event Wife shall be suffering from carcinoma of any type whatsoever, affecting any part of her body at any time between the date of the execution of this agreement [October 27, 1953] and December 1, 1955, then in that event Wife shall be entitled to support, maintenance or alimony from Husband in such monthly amounts as the parties may agree upon at that time, and in the event the parties cannot reach an agreement regarding the amount of such support, maintenance or alimony, then the Superior Court in which said divorce action is now pending may hear and determine any question of fact as to whether Wife is at that time suffering from such carcinoma, the ability of Husband to pay support, maintenance or alimony, the amount reasonably required by Wife for her support and maintenance, medical and hospital care, and may thereupon make an order or judgment awarding Wife such a monthly allowance from Husband as may seem reasonable and proper to the Court, ...”
At the time of the hearing of the divorce action appellant
On November 1, 1955, appellant filed a “Petition for Order of Modification of Divorce Decree” in which she alleged she was suffering from carcinoma and from radium burns incurred in the treatment of said disease. This petition was ordered off the calendar and on March 5, 1956, an amended petition for modification was filed in which it was alleged that after appellant was suffering from carcinoma of the cervix in 1951, she received radiation treatment; that she suffered severe radium burns; that she, from time to time, had to undergo tests for the purpose of determining whether or not the said disease was recurring; that one examination disclosed cells which a pathologist determined were suspicious of malignancies; that she had never been diagnosed as cured; that she was unable to support herself; that she needed medical care and treatment not only for the purpose of diagnosing her condition as to the disease of carcinoma, but for other physical conditions which are the effect of carcinoma; that at the time of the settlement she did not know that the radium
After a hearing on the petition the court denied appellant any relief and this appeal followed.
Appellant contends that the trial court erred in interpreting the property settlement agreement as requiring appellant to prove that she was suffering from an active carcinoma that could be diagnosed as malignant at the time of the hearing and as not including a right to relief from the effects of preexisting carcinoma.
We do not believe that there is merit in this contention. The record shows that the appellant had had cancer of the cervix which had been arrested by X-ray and radium treatment to the extent that the medical doctors could not find any clinical or positive evidence of recurrence of carcinoma or that she was suffering from carcinoma at the time of the hearing of her petition for support and maintenance. The evidence does show, however, that during the time she was taking X-ray and radium treatments for the carcinomatous condition of her cervix she suffered irradiation damage to the lower bowel, or radiation proctitis due to the X-ray and radium therapy, which, according to one of the medical expert witnesses: “practically always does arise with the treatment of cancer of the cervix in variable degrees.” She was still suffering from that condition at the time of the hearing. The record also shows that appellant had some seven or eight consultations with reference to the terms of the property settlement agreement prior to its execution and that a Doctor Frazier, who had treated appellant, advised her attorney on July 18, 1953, before the execution of the agreement that no evidence of
Appellant also contends that the court’s findings are not supported by the evidence. We agree that most of the findings are contrary to the uneontradieted evidence; however, there is the pertinent and material and controlling finding that appellant is not suffering from carcinoma, which finding is supported by substantial evidence and, since we have construed the contract to mean that appellant had to prove that she was actually suffering from carcinoma rather than from its effects, the fact that findings on other irrelevant matters are not supported by the evidence becomes immaterial in this ease. As stated in Culjak v. Better Built Homes, Inc., 58 Cal.App.2d 720, 725 [137 P.2d 492], “In order to justify the reversal of a judgment because of defective findings it must affirmatively appear not only that substantial injury has been caused and that substantial rights have been affected but also that a different result would have been probable if the defects had not occurred. (Lutz v Merchants’ Nat. Bank, 179 Cal. 401 [177 P. 158] ; Murnane v. Le Mesnager, 207 Cal. 485, 495 [279 P. 800].)”
The judgment is affirmed.
Van Dyke, P. J., and Schottky, J., concurred.
A petition for a rehearing was denied February 17, 1958.
Assigned by Chairman of Judicial Council.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.