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Birth:          31 Jul 1865 Chicago, Ill.
Death:          31 Jan 1947 Los Angeles, Cal.

Notes
1880 in Hyde Park, Cook Co., Ill.
Brown Fam Tree on ancestry
1900 in Los Angeles, Cal. lawyer
1910 in Hamilton Co., Tenn. atty
per www.metnews.com/articles/2010/reminiscing040810.htm, he was an attorney, 
pioneering LA automobilist, leader of the Automobile Club of Southern California in its 
early days. He owned a 4-cylinder 24-horsepower Pope Toledo.
Writeup on divorce at 
http://www.metnews.com/articles/2010/reminiscing061010.htm:
Thursday, June 10, 2010
Page 11
REMINISCING (Column)
Herbert C. Brown Wins in Court of Appeal
By ROGER M. GRACE 
In these days when it is common for parties to make decisions before a wedding 
concerning division of their property should a dissolution of marriage occur, it will 
seem incredible that under a July 10, 1935, Court of Appeal decision, any property 
settlement agreement in contemplation of divorce was unenforceable in an action on 
the contract.

The decision came in connection with stormy and protracted post-divorce litigation 
between attorney Herbert Cutler Brown and his erstwhile wife, the former Zoe Elsie 
Lowe, daughter of baloonist/entrepeneur Thaddeus S. C. Lowe, after whom Mount 
Lowe is named.

Here’s what the appeals court said in that 1935 opinion:

“Where a husband and wife agree that a divorce shall be obtained by one or the 
other, and adjust their affairs in contemplation of a divorce by entering into a 
settlement conditioned thereon, of their property rights and make promises of an 
executory nature pertaining thereto, and such facts are established in a subsequent 
action on the contract, they have no right to receive the aid of the court in the 
enforcement of their agreement, which the law condemns as a violation of the policy 
of the state. If, as the court found, it was of the essence of the agreement, although 
not stated therein, that plaintiff should obtain a divorce from the defendant, and the 
promises of the defendant were made in contemplation of and to facilitate, and 
conditioned upon, a dissolution of the marriage, that fact bars a recovery by plaintiff in 
a suit based on the contract.”

The property settlement agreement was executed by the parties on Feb. 1, 1917. An 
immediate divorce action was not filed in the Los Angeles Superior Court. Instead, Zoe 
Lowe Brown later went off to Reno for a “quickie” Nevada divorce, which she secured 
on May 8, 1919.

The decree did nothing more than terminate the marriage. 

Despite the absence of a court order, HCB made monthly child support payments, 
pursuant to the accord. That agreement called for the payments to Zoe Lowe Brown 
for the benefit of their son in the amount of  $200 until the son reached his majority, 
and then at the rate of $125 a month for the rest of her life.

Brown made the payments, that is, until 1930, when he stopped. The son, Cutler 
Brown, was then age 26, working as a radio technician, and living with his mother.

The ex-wife sued in Los Angeles Superior Court on the contract. She sought 
installment payments that were in arrears, as well as well as a lump sum she 
contended was owed her.

Presiding over the trial was Superior Court Judge J.O. Moncur, from Plumas County. 
While ruling for the husband on the first four causes of action on the ground that 
contracts made in contemplation of a divorce are void, he found “that there was ample 
consideration for the promise of defendant to pay to the plaintiff the said sum of 
$12,500,” reduced to $11,225 in light of an advance that had been made by Herbert 
Brown.

He appealed; she didn’t. The opinion was written by a pro tem, Los Angeles Superior 
Court Judge Clement Shinn (later an associate justice, then presiding justice, of the 
Court of Appeal.)

The judgment was reversed, with Shinn’s opinion declaring:

“The question of consideration is not material. The contract itself shows ample 
consideration in the mutual covenants of the parties, under which their property was 
divided, certain obligations were assumed, and waivers were made. But the law does 
not look with approval upon a contract in contravention of good morals merely 
because it is supported by a sufficient consideration, nor does the law allow the 
enforcement of contracts void against public policy through the application of the 
doctrine of estoppel.”

The Court of Appeal having spoken, and the case not having gone to the California 
Supreme Court, that would seem to have ended the matter. It didn’t. Spurning Herbert 
Cutler Brown’s protest of res judicata, the Superior Court allowed the entire complaint 
to be amended and tried the action.  I’ll discuss that next time.

Thursday, June 17, 2010
Page 11
REMINISCING (Column)
Judge Resurrects Dead Suit, Brown Ordered to Pay
By ROGER M. GRACE 
One of the most confounding sets of divorce-related cases you could come across, 
from a procedural standpoint, stems from the breakup of the marriage of attorney 
Herbert Cutler Brown and Zoe Lowe Brown.

Z.L. Brown in 1932 brought an action in Los Angeles Superior Court to enforce a 
property settlement agreement she had entered into in 1917 with H.C. Brown. She got 
a “quickie” Nevada divorce in 1919. He honored his lifelong obligations under the 
agreement to pay alimony and child support until 1930, when he stopped paying. The 
trial court found against the former wife on her first four causes of action, and in her 
favor on the fifth. He appealed, she didn’t. The Court of Appeal snatched victory from 
the woman, reversing (without directions), proclaiming that any contract made in 
contemplation of a divorce was void as against public policy.

All that was related last week.

The remittitur was filed, and what do you suppose the plaintiff did? She moved to 
have the matter set for trial on all five causes of action. That would appear to be 
folly…except that the motion was granted.

Spurning Herbert Cutler Brown’s motion to dismiss the first four causes of action on 
the ground that there was a final judgment in his favor on them, the trial judge granted 
the plaintiff’s motion to amend her complaint as to all five causes of action.

The defendant charged over to the District Court of Appeal seeking a writ of mandate 
to restrain the Superior Court “from retrying said action upon any of the issues joined 
therein.” Denied.

HCB tried again. This time he sought a writ of prohibition in the appeals court. Denied. 
The May 8, 1936, opinion says:

“Pleas of res judicata and estoppel are defensive matter and the superior court has 
jurisdiction to determine the merits thereof when interposed properly by pleading or 
proof; and, any alleged error in ruling upon such a plea being reversible on appeal, 
the pleader is not entitled to a writ of prohibition to restrain the superior court from 
proceeding with the trial of the case when the court has jurisdiction of the parties and 
subject-matter of the action.”

Although the opinion allows that “effect of the prior judgment may be reviewed on 
appeal,” it wasn’t. Los Angeles Superior Court Judge Leslie E. Still on Dec. 9, 1936, 
awarded the plaintiff the sum of $9,080 (about $ 144,000 in terms of today’s dollar), 
and HCB did not appeal.

That doesn’t mean that HCB had given up. After the time for filing an appeal expired, 
he moved to vacate the allegedly void judgment. The motion was denied.

The Court of Appeal on May 27, 1938, affirmed, saying:

“The effect of a prior appeal and reversal without directions is to revest in the trial 
court authority and jurisdiction to determine whether or not the decision upon the prior 
appeal is res judicata. The court had jurisdiction of the subject matter….We are not 
concerned on the appeal from the order with whether the judgment of the court was 
right or wrong. That question is not before us. That question cannot be brought before 
us on an appeal from an order denying a motion to set it aside presented to the court 
long after the time for appeal had expired.”

Was that, at long last, the end of the litigation? No. H.C. Brown declared bankruptcy. 
His former wife thus had the challenge of reaching his assets. A referee on July 26, 
1938, ordered that certain stock certificates in the name of HCB be turned over to 
ZLB; a petition for review was filed in the federal District Court; on Nov. 25, 1939, it 
was dismissed as untimely.

It might be noted that H.C. Brown was a fairly savvy lawyer and chances are that he 
knew in 1917 when the settlement agreement was reached that it was invalid.

Under a 1900 decision of the California Supreme Court, grounded on common law, 
“any agreement for divorce, or any collateral bargaining promotive of it, is considered 
unlawful and void.”

Divorce was simply against public policy. Until “no-fault” divorces were instituted in 
1970, grounds had to be established, such as adultery or extreme cruelty. Settlement 
agreements were frowned upon because of the prospect of a husband desisting from 
asserting the falsity of the grounds alleged in the complaint in return for the wife 
accepting a monetary pay-off that was on the modest side.

HCB possibly figured he would have no difficulty in disavowing the settlement 
agreement later, should he choose to do so.

Under the 1935 decision of the Court of Appeal reversing a judgment for Zoe Brown, 
the settlement agreement was unenforceable—period. It was only through the failure of 
a newly appointed trial court judge to apply the law as set forth by the higher courts 
that the former wife obtained a new judgment.

Parents
BROWN Calvin Walter (6 Jul 1841 - 3 Oct 1918)
BLISS Marion M. (27 Apr 1842 - 26 Feb 1918)

Siblings
BROWN Herbert Cutler (31 Jul 1865 - 31 Jan 1947)
BROWN Frances Vincent ("Fanny") (9 Jan 1872 - 11 Sep 1954)
BROWN Walter Marion (11 Feb 1882 - 1916)

Marriage To LOWE Zoe Elsie (6 Sep 1874 - 20 Sep 1958)
    m. 14 Feb 1895 dv. 8 May 1919 Los Angeles, Cal.

Notes

Parents
LOWE Thaddeus S. C. ()
----- ----- ()

Children by LOWE Zoe Elsie 6 Sep 1874 - 20 Sep 1958
BROWN Zoe Herberta (12 Feb 1897 - 15 Aug 1989)
BROWN Cutler Lowe (18 Jul 1903 - 9 Oct 1987)

Marriage To MCNEFF Katherine ("Kate") (Apr 1883 - 30 Apr 1944)
    m. 21 Jun 1919 

Notes

Parents
MCNEFF John ()
FITZGERALD Beatrice ()

Children by MCNEFF Katherine ("Kate") Apr 1883 - 30 Apr 1944
BROWN Thomas Joseph (19 Jan 1922 - 9 Apr 1993)

Marriage To ----- Eloise L. (1894 - )
    m.  

Notes


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