Opinion
The parties were divorced in the State of Missouri. The decree entered April 20, 1966, by the Missouri court provided: “. . . It is further ordered and adjudged by the court that plaintiff [defendant herein] pay to defendant [plaintiff herein] as alimony the sum of $15,000.00 as alimony in gross, payable in the sum of $150.00 per month . . . until paid in full and in dеfault of anyone [vzc] payment execution issue therefor . . . .” After making several payments defendant defaulted. Thus, on December 22, 1967, in the Los Angeles Superior Court plaintiff sued to establish the Missouri decree as a judgment of the California court, obtain judgment on arrearage and recоver reasonable attorney’s fees. Four days later, on December 26, 1967, plaintiff remarried in Missouri. On January 22, 1968, defendant filed an answer specifically setting up the affirmative defense that plaintiff’s remarriage had discharged his liability to continue alimony payments. On October 23, 1968, counsel for the рarties entered into a stipulation 1 whereby plaintiff was to have judgment against defendant. Pursuant thereto judgment was rendered and entered on October 24, 1968, wherein it was ordered that the Missouri judgment be made a judgment of the Superior Court of California and further, “2. That the sum of $12,500.00 as alimony in gross is still due, owing and unрaid under said judgment; 3. The defendant is ordered to pay said alimony in gross at $150.00 per month commencing October 20, 1968 and on the 20th day of each month *528 thereafter until said alimony in gross is satisfied; 4. The plaintiff shall have all rights and privileges of any judgment creditor, including the right to obtain a Writ of Execution to enforce this judgment, that the court finds that there is a present arrearage on said alimony in the amount of $2,000.00.”
Defendant having defaulted in payments under the October 24, 1968, judgment, plaintiff caused writ of execution to issue and levied on defendant’s wages. On May 21, 1969, defendant filed notice of motion to recall and quash writ of execution “on the judgment for alimony under a foreign decree entered on October 24, 1968, and to vacate and modify said decree” on the “grounds that plaintiff remarried on December 26, 1967, that defendant remarried on December 27, 1966, and that defendant has a seven-week-old bаby and also contributes to the support of his stepson, age 17.” After hearing on the motion, the same was granted on June 20, 1969; the court thereafter entered its order recalling and quashing the writ of execution, terminating “defendant’s obligation to make payments to the plaintiff for amounts which would accrue and become due from and after June 20, 1969,” and staying execution on the arrearage permitting the same to be paid at the rate of $50 per month. Plaintiff appeals from the order.
The court’s findings of fact and conclusions of law reflect its “modification” of the alimony in grоss provided in the October 24, 1968, judgment “on account of remarriage” of plaintiff. While defendant in his notice recited that his motion would be made on the grounds that plaintiff remarried December 26, 1967, and attached thereto certified copy of her Missouri marriage license, and that he remаrried December 27, 1966, and has a family to support, in the absence of a reporter’s transcript of the oral proceedings on the motion there is no showing what evidence, if any, was offered by defendant of his obligation to his present family. The only finding relative to any ground of “modification” (finding No. 4) recites plaintiff’s remarriage on December 26, 1967; no mention is made of any other circumstances. It is apparent, therefore, that the remarriage of plaintiff was the court’s reason for the “modification” (conclusions Nos. 3, 9). Moreover, the court in its order “terminated” defendant’s obligation to make payments on the $12,500 alimony in gross provided for in the October 24, 1968, judgment, not as of the date of plaintiff’s remarriage but as of June 20, 1969 (date of minute order granting motion). Thus by implication the court found that the alimony in gross had not terminated by operation of law on Decembеr 26, 1967, and “terminated” the same a year and a half later (June 20, 1969) by “modifying” the judgment “on account of remarriage” of plaintiff.
The judgment of October 24, 1968, (1) is res judicata on the issue of termination of defendant’s liability for payment of alimony in gross upon *529 plaintiff’s remarriage and defendant is barred from relitigating the issue, and (2) is not subject to modification on account of plaintiff’s remarriage, thus we are compelled to reverse the order from which this appeal is taken.
In his answer to plaintiff’s complaint to establish foreign judgment defendant expressly raised the affirmative issue that plaintiff hаd remarried terminating alimony placing directly in issue the effect of plaintiff’s remarriage on his obligation. Thereafter instead of relitigating the issue, and with full knowledge of plaintiff’s remarriage, defendant through his counsel entered into a written stipulation that the Missouri decree be adjudged a judgment of the California court, that plaintiff have and recover judgment against him, that “the sum of $12,500.00 as alimony in gross is due, owing and unpaid” and that he be ordered to pay the same at $150 per month until the same is satisfied. Accordingly judgment was entered October 24, 1968. This judgment rendered and entered pursuant to stipulation was final
(Reed
v.
Murphy,
Nor can there be any question that at the time the stipulated judgment was rendered and entered the trial court had jurisdiction over both the paries and the subject matter. Defendant’s challenge to the latter is predicated on the argument that on the day of plaintiff’s remarriage the alimony in gross, which he equates with alimony, terminated thus the court lacked jurisdiction to revive it and the parties’ stipulation could not confer jurisdiction. Defendant is in error for (1) under the Missouri law the alimony in gross awarded by the Missouri court did not terminate upon plaintiff’s remarriage; (2) the judgment of October 24, 1968, is not an alimony judgment but one based on an agreement for the payment of money and is a judgment for a fixed sum even though designated “alimony in gross” payable in monthly installments, and provides that plaintiff shall have all rights and privileges of any judgment creditor; and (3) the court in granting defendant’s motion and “modifying” the decree “on account of remarriage” of plaintiff impliedly found that the court had jurisdiction over the subject matter at the time it rendered its October 24, 1968, judgment and that the award of alimony in gross did not terminate by operation of law on the day of plaintiff’s remarriage.
According to Missouri law the award of alimony in gross by the Missouri court was final and not subject to modification. Both the Missouri Legislature and the Missouri courts make a definite distinction between an award of alimony in gross and one of alimony “from year to year,” and treat the
*531
former in a differеnt manner than the latter. Section 452.080, Revised Statutes, Missouri (1959), says the court in its discretion may decree “alimony in gross,” and the authorities hold that it be made payable in installments. (Ba
cky
v.
Backy
(Mo.App. 1962)
It is readily apparent from the Missouri law that at the time defendant
*532
stipulated to the rendition of judgment against him and the same was entered by the California court (October 24, 1968), the award of alimony in gross set up in the Missouri decree, which was final, had not terminated by operation of law and was not subject to modification, and the California сourt had jurisdiction over the subject matter; and that thereafter the alimony in gross set up in the California judgment which became final, could not be modified either by terminating the same on account of plaintiff’s remarriage or by changing the terms of payment. “In an action to enforce a modifiable support obligation, either party may tender and litigate any plea for modification that could be presented to the courts of the state where the alimony or support decree was originally rendered.”
(Worthley
v.
Worthley,
Finally, indulging all reasonable inferences in favor of the judgment of October 24, 1968, it is reasonable to infer from defendant’s stipulation an acknowledgment of his intentiоn at the time the Missouri decree was entered to bind himself to pay the $15,000 to plaintiff regardless of any remarriage.
The order is reversed.
Wood, P. J., and Gustafson, J., concurred.
Notes
“It is hereby stipulated and agreed by and between plaintiff and defendant in the above entitled action that the said Betty Mae Avery shall have and recover judgment against Jamеs A. Avery as follows:
“(1) That the said judgment of the Jackson County Circuit Court of Missouri at Kansas City be adjudged the judgment of the Superior Court of the State of California, for the County of Los Angeles.
“(2) That it be adjudged that the sum of $12,500.00 as alimony in gross is due, owing and unpaid.
“(3) That defendant be ordered to pay said alimony in gross at $150.00 per month, commencing October 20, 1968 and each month thereafter until said alimony in gross is satisfied.
“(4) Plaintiff may now obtain Writ of Execution for all present arrearage on said alimony in gross, to wit, Two Thousand-Dollars ($2,000.00) and any future arrearage that may occur.”
Section 452.075: “Remarriage of wife ends alimony.
“When a divorce has been granted, аnd the court has made an order or decree providing for the payment of alimony and maintenance of the wife, the remarriage of the former wife shall relieve the former husband from further payment of alimony to the former wife from the date of the remarriage, without the necеssity of further court action, but the remarriage shall not relieve the former husband from the provisions of any judgment or decree or order providing for the support of any minor children.”
Section 452.080: “Decree for alimony—a lien, when.
“Upon a decree of divorce in favor of the wife, the court may, in its discretion, decree alimony in grоss, such decree shall be a general lien on the realty of the party against whom the decree may be rendered, as in the case of other judgments. When such decree is for alimony from year to year, such decree shall not be a lien on the realty as aforesaid, but an exеcution in the hands of the proper officer, issued for the purpose of enforcing such decree, shall constitute a lien on the real and personal property of the defendant in such execution, so long as the same shall lawfully remain in the possession of such officer unsаtisfied. In lieu of the lien of such decree for alimony from year to year, it is hereby provided that the party against whom such decree may be rendered shall be required to give security ample and sufficient for such alimony, but where default has been made in giving such security, the decree for alimony from year to year shall be a lien as in case of general judgments.”