*1 A. No. 22499. In Bank. Jan. [L. 1954.] DEXTER, Appellant, MARY Plaintiff and v. RAYMOND DEXTER, Appellant.
C. Defendant *3 Hightower Martin, & Irving M. Walker, Martin, John L. and Mark Mullin for Appellant. Plaintiff and
Macfarlane, Schaefer & Haun and William Gamble for De- Appellant. and fendant On May 1944, plaintiff 25, Mary
TRAYNOR, J. Dexter Raymond Dexter, husband, defendant executed her an and of their providing community for the division of support and maintenance property and the and marriage. The of recited that the children apart separated time, and had lived for some parties “ permanent, separation appeared to be and The that community division parties desire to effect a of said provide for the and maintenance of property and to by friendly agreement, [plaintiff] children instead and said resorting purpose.” provided It then of to court said conveyed property should to and that certain enumerated separate property plaintiff. para- become the of next “ [plain- pay to agrees to provided graphs [Defendant] of their and the maintenance support and her tiff] fifty hundred one of son, the sum minor and daughter adult first thereto In addition ... month. per ($150.00) dollars Sorority and other dues daughter’s pay for the agrees party per month, com- ($25.00) twenty-five the sum expenses long as thereafter so continuing 1944, and mencing June college, and un- undergraduate daughter remains said 1,1944. from June (2) years exceed married, not to but leaves school hereto minor son “When the military into goes if he and work, when goes monthly payment of then the States, the United forces of . . dollars. . hundred one shall be decreased [plaintiff] agrees, at amounts, above [defendant] “In addition premises at the house guest or maid’s up fix expense, to his property. fence on said repair the described, and to above her for payments to all marriage [plaintiff], “Upon the cease, shall on the terms continue daughter shall minor son for the [plaintiff], all Upon the death provided. hereinabove will assume cease and shall payments hereunder [defendant] children. support of said any obligation for the “ hereto, other money property of (4) All shall be con- conveyed [plaintiff], agreed to be than separate become veyed [defendant], and shall . . . of [defendant].
“(6) expressly herein, Other than hereby respective parties party hereto do release the other any right all respectively support, from hereto care maintenance, wife, respectively, as the husband or party. the intention of the other It is hereto to make rights all support, a final settlement herein of care and maintenance, against other, and to one release the other from party respectively support, of such care and provided. maintenance other than as herein . . . party
“(8) Neither hereto waives cause of action for she, respectively, against which he or divorce the other *4 party hereto. “ any action divorce or maintenance hereafter brought any by party, [plaintiff] right waives either to alimony, tem permanent, other than such porary provided or amount as is support. for her for hereinabove “ agrees pay assumes and attorneys to fees [Defendant] by hereto incurred execution agree- of agrees ment and pay all court costs and reasonable counsel by fees incurred [plaintiff] action for divorce which ” may against she file [defendant.] Shortly agreement after this plaintiff was executed filed an ground action for divorce on the cruelty. extreme She attached the complaint to the prayed and that it approved, that defendant comply be directed to it, with and that be awarded in accordance with its terms. Defendant defaulted and an decree was entered. approved The decree the agreement, ordered defendant comply it, with pursuant to its terms, pay “defendant plaintiff ordered to monthly the sum of commencing $150.00 . . . June 1944; provided, however, that when the son Norman Greenaway Dexter, goes work, leaves school goes or when he into the military forces of States, the United monthly the said award shall be reduced per to the sum of $100.00 month.” expressly The decree incorporated also with respect payment to the per of $25 month for college ex- penses daughter parties. of the adult A final decree approximately year was entered one later. In 1952 petitioned the court to increase the monthly amount of the payments to ground $800 on the changed circumstances. refusing court entered its order modification on the ground jurisdiction that it modify had no the amount of appealed Plaintiff and secured an order for attorney fees and on appeal, costs appealed defendant from the latter order.
Plaintiff contends that ordered to be made pursuant are to modification court under section 139 of the Civil Defendant, Code. hand, on the other they contends that constitute integral an part not, therefore, subject
are to modification. A husband and wife contract property (Civ. Code, 158), if are living sep § apart they may provide arate and and main tenance either of them (Civ. and their children. Code, 159.) Moreover, as between the § husband wife, if provisions and maintenance have been made integral inseverable of the -division of prop- erty, and the court in a approved divorce action ment, its cannot thereafter be modified without parties. the consent of (Tuttle both Tuttle, Cal.
41 587]; Adams, Adams v. 29 420-422 P.2d Cal.2d 419, 2d [240 Puckett, 833, Puckett v. 21 265]; P.2d Cal.2d 621, 625 [177 Ettlinger v. ; Ettlinger, 172, P.2d 3 Cal.2d 841-842 [136 1] Cal.App.2d 120 540]; Sasanoff, v. 175-178 P.2d [44 Sasanoff 94 Cal. 840]; Hamilton, P.2d Hamilton v. 120, 127 [260 88 App.2d 293, 750]; Alexander, P.2d Alexander v. 299 [210 Holloway 724, ; v. Hollo Cal.App.2d 726-727 P.2d 348] [199 way, Cal.App.2d 44, 22]; Kohl, Kohl v. 79 46-47 P.2d [179 535, 540-541 Ros Cal.App.2d 494]; 66 P.2d Landres v. [152 Rich, asco, Cal.App.2d 99, 20]; 62 105-106 P.2d Rich v. [144 Cal.App.2d 526, 780].) 44 530 P.2d [112
It agreement is clear the executed such an that They expressly finally in this case. stated that intended they property to settle both the division of their and their and duties to and maintenance, and each party “any right waived and all main- support, to care and expressly provided tenance” other “than as for herein.” It contrary clearly expressed would be to the intention of the provision to monthly payments hold that the for con- separable agreement payment stituted a jurisdiction continuing modify. contends, Plaintiff however, monthly payments that since were to on her remarriage .terminate death or and were de prayer scribed as in they of her complaint, should points they be so treated. She out that if were intended as a division of it have would been more reasonable for provide they should until a continue given paid. amount had been These considerations would be morp persuasive if presented the issue whether, was on the hand, monthly one solely of a division community property, or, on the other hand, solely alimony. When, case, however, provision have made the and maintenance an integral part of their settlement agreement, monthly payments will ordinarily have a dual To character. they the extent that designed are discharge obligation they and maintenance ordinarily will reflect the obligation characteristics and thus have the indicia alimony. (See Puckett Puckett, v. 21 833, Cal.2d 838 ; Ettlinger P.2d v. Ettlinger, 3 Cal.2d [136 1] 174 [44 540]; P.2d Kohl v. Kohl, Cal.App.2d 66 535, P.2d [152 494].) hand, On the other the extent that represent community a division of the property itself, or constitute inseparable part of the consideration for settle-
ment, they alimony, accordingly are not cannot be modi- changing fied the terms of without parties. contends, however, Plaintiff when the monthly expressly was incor- porated into the decree and defendant was or- perform it, merged decree, dered became and that therefore, Hough under the rule Hough, stated 26 Cal.2d *6 605 15], P.2d it was pursuant to modification [160 Hough section 139 of the In ease, however, Civil Code. judicata it payments had become res that the there involved alimony integral part property were and not an of a settle- Accordingly, ment. upon the court was not called to review determination, correctness of that and it held that an alimony merged ment for that had been in a divorce decree longer in independent no be enforced an could action. In the present case, hand, previous on the other there has been no adjudication proceedings in modification monthly that the pay- alimony. Moreover, interlocutory ments are decree itself purport did not to determine the character merely It pursuant ordered defendant to make them terms of the judgment thus made clear that including contempt remedies would be available for the en- obligations. forcement of his
In payment the absence of an order lor the of interlocutory decree, in the such as the order that had been present Hough (see, found to be case also, Werner v. Werner, Cal.App.2d 248, 120 249-252 961]; P.2d [260 Dunning, 114 Dunning Cal.App.2d 110,114 v. P.2d ; [249 609] 104 Pearman, Cal.App.2d 250, 253 ; Pearmanv. P.2d [231 101] Weedon, Cal.App.2d 367, 92 369-370 Weedon v. P.2d [207 ; Well, Cal.App.2d 1, v. 60 3-5 985]), Gosnell P.2d 78] or [139 jurisdiction to make such an order
a reservation in the cannot, interlocutory future, the court after the decree has final, provision add a for modify become pursuant property to a amount ordered settle Accordingly, plaintiff if agreement. ment was dissat whereby her isfied with contract she had made the integral part an and maintenance of the settle grounds setting ment of and had tenable aside, it she should have attacked the before the cannot, however, decree was entered. She after having approval secured its the court having accepted thereof, relief the benefits now seek inconsistent with its terms. ; 523-524 P.2d (.Patton Patton, 32 Cal.2d [196 909] 265].) P.2d 621, 627-628 Adams, Adams v. 29 Cal.2d [177 monthly- in the increase her motion stating affidavit an uneontradieted filed payments, community divided agreement the under their waiving a equally. She contends except is a maintenance support and exchange given it is invalid unless agreement is settlement community property than that to greater share a Although it be entitled. otherwise party would which the present case, Adams type was was that equally applies types to other decision of that the rationale agreed Thus if the bargains. wife integrated community property in ex accept less than her share it payments, greater support and change for unjust subsequently to hold that the would be alimony subject reduction on motion of the husband. Family Law, p. 801.) More (See Armstrong, California over, made, at time a community property is be uncertain as to which of their ordinarily separate, rather than not know how will in the divorce action find the facts or will how would, acceptable agreement-, in the absence of an exercise its *7 dividing alimony. in property awarding discretion and adjustment questions The amicable these doubtful with support rights and maintenance parties may supply alone sufficient consideration to support agreement. (Bennett entire Bennett, their v. 219 153, 426].) present Cal. 159 P.2d in case, Thus [25 recited that desired to settle “by rights friendly agreement, maintenance in of resorting purpose.” stead to court for said More over, plaintiff ground since her secured divorce on the cruelty, rights extreme had not settled agreement, the court could in its discretion have awarded plaintiff community all of the and less than she agreement. received under her case, such however, the would be to in changed reduction the event of agree circumstances. Plaintiff was entitled instead equal to an community property division of the exchange in payments and maintenance that could not be reduced. Accordingly, community the fact that the equally divided bearing was on validity no 44 parties waived whereby both of the other than
rights ; 420 P.2d 419, Tuttle, 38 Cal.2d (Tuttle 587] v. [240 therein. P.2d 127 Cal.App.2d 120, 120 Sasanoff, [260 v. Sasanoff 840] 293, Cal.App.2d Hamilton, 94 v. also, Hamilton ; see, Cal.App.2d Holloway, Holloway 79 ; v. P.2d 750] [210 22].) 44, 45-46 P.2d [179 not payments are if the Defendant contends him power order no had modification, the court subject to trial appeal. The attorney fees on plaintiff’s costs and pay proceed- in this however, to determine jurisdiction, had court accordingly, involved, and of the ing the character meaning of sec- within pending is still action the divorce Court, 38 Superior (Lerner v. the Civil Code. 137.3 of tion Wilson, 33 Cal.2d ; Wilson 676, 685 P.2d 321] Cal.2d [242 not waive did 671].) Since P.2d [199 attorney and costs fees might have to right she shown, the order been discretion has abuse of and no ment affirmed. appeal must be attorney on fees awarding costs are affirmed. The orders Schauer, J., and J., Edmonds, Shenk, J., J.,
Gibson, C. Spence, J., concurred. Dissenting. Concurring and
CARTER, J., I concur disagree case I affirming the orders judgment reasoning leading thereto. some of refusing trial here entered its order modification The support provisions incorporated ground final of divorce on the had no decrees modify jurisdiction to the amount of the entering order, Prior to its the trial court defend- sustained objection ground ant’s to the introduction of evidence on the governed by that the their contract. majority say jurisdic- here that: “The trial court had tion, however, proceeding determine in this the character payments involved, ...” This is inconsistent with holding orders are to affirmed. If trial its that the court could determine the character of the *8 agreement for in were the entered into between the parties, improperly objection it sustained then defendant’s issue, of evidence on that to the introduction and the case Not only majority opinion should have been reversed. is the itself, case it is this inconsistent inconsistent 881], P.2d p. 49 where Fox, post, Fox v. the case of [265 pay- however, that since the contends, “Plaintiff was said: remarriage, to cease on alimony, labeled were ments were event of a reduction subject to modification in the and were trial the pension, there is evidence of defendant’s alimony subject solely finding implied court’s that conflicting extrinsic evi- absence to modification. agreement by the interpretation upon dence, placed (Em- appeal. binding trial court is not on this court on ...” phasis added.) implication from is that The clear question character of the is a of fact to be deter- by by upon mined the trial court evidence offered no purpose. for that “there has been It is admitted that previous adjudication proceedings in modification monthly interlocutory alimony. Moreover, are decree purport itself did not to determine character of merely It ordered defendant to make them pursuant agreement to the terms of the and thus made clear judgment including contempt remedies would be avail- able for the obligation.” enforcement of his majority holding of the that this was a
With the entered into between the which agreement settlement power modify, agree. I It had no is said that the court haying “cannot, however, approval after secured its having accepted thereof, the benefits now by the court its terms.” inconsistent with The factual situa- seek relief approved that the trial court presented here shows tion entirety entered into between the in its agreement performed. It it be also shows that the ordered that “pursuant plaintiff were provisions for to the terms of said in the agreement” set forth decree of divorce granted plaintiff. The rule in was such a case approved hy if the entire should be that court incorporated its are in the decree and performed, portions those ordered to be included in the decree by contempt proceedings. may enforced be balance approved by incorporated the court but not provisions, by may separate enforced decree, action. It should in the that where the terms of a be the rule also separation or an approved have been as valid and incorporated decree, enforceable the court action, action, modify or in a later not, its terms *9 approved by in- court, it, presented to the provisions. Once ordered, performance thereof the decree and corporated in the sup- agreement with by their parties are bound the may the case be. maintenance, alimony, or port and (§§ 158, 159, 175) code There are several right to contract with each other. parties the grant to the overreaching there is no or reason of fraud In the absence support and maintenance should providing for why a contract other contracts. A dignity accorded to given the not be dignity a settle- accords that majority of this court monthly payments provides for agreement which ment power to determine the character trial has that the holds court present that statement is a In the case payments. of the majority the sustains trial court’s action sequitur the non since concerning the character of the refusing evidence to admit disagree that I believe that the we is once Where purports whether it entered into an parties have provide and maintenance property, or divide the property, of the which is found a division payments without subject is forever closed and equitable, the the fair and to be agreement. Incorpora- the terms of are bound making remedy only the effect of decree tion in the and not on which has become judgment on the incorporation, In of lack of the event merged therein. dignity have the remedy agreement which should same is on the contracts. as other (Dexter Flynn Fox Dexter, Fox, v. v. these three cases clarify opportunity had an law Flynn) this court stability might given settlement
so Not and maintenance. agreements ments holdings in three not majority these cases settle only do import they add untold confusion. The of the law, but may appellate court order a Flynn decision is that record, which is not even attached agreement, judgment judgment of divorce after that has become to a in my there, out dissent there was no pointed As I final. have incorporation and the should resorted adequate agreement itself for the sum on the and substance to an action duties, having approved by rights it been import The in the divorce action. of this case is that court question character of the involved in the merged now agreement the divorce decree is it question of fact the trial court which a determine evidence on the other than without from its affirmance of naturally flows itself. This result plaintiff’s admit evidence refusing to action in trial court’s inference, course, to be drawn subject. logical on the impliedly it con- court is that action of the trial from the Then agreement to be settlement. sidered the one of Fox wherein said that the absence we have ease conflicting finding extrinsic evidence the trial binding appel- on is not on an the character of necessary, admissible, If then late court. no evidence is *10 court, may any Appeal, or of make its District Court payments agreed own determination to the character of the as upon by spouses litigation and between the to the end that subject in these matters will be and the law on the endless any stability pointed will be without I in whatsoever. As out my Flynn attorneys dissent in the case, how how will know advise, or for, act their in clients of this The cases kind? they obvious answer is that will not have idea the remotest incorporate whether to agreement the in verba, entire haec or in substance, physically or attach it to the decree of divorce or whether, no matter done, any how it court, is the or trial appellate court not will monthly payments determine if that are for those subject alimony constitute to modification. open majority
Left opinions cases, the in all three but by there implication, parties may is whether the contract other support each as to or alimony, maintenance, where no property division as such is If parties involved. agree paid on a certain sum to be or monthly, annually, or lump of semiannually, lieu agree- sum provision, that ment, equitable, if fair and should have stability the same there property by as where has been a of agreement. division alimony per concerned, So se far as is if the cannot or for some reason do not themselves reach agree- an amicable ment on the subject, power the trial court has the to make provision such in the decree. event, In this would, the amount subject be course, modification under continuing jurisdiction of the court.' Why should not be binding agreement a able to make for payment alimony money purely or for support and maintenance, is made not by majority. clear majority in each opinion these cases leaves the agreement if an implication that such incorpo- is obvious provisions subject its will decree, rated in to modifi- may not be modified. cation, incorporated, if not it is so majority holding if implication from This follows agreement power deter- incorporated, the court has is they are payments, is, mine the character whether Why alimony for or of a settlement. a agreement pay just and valid fair, difference? Is not a money just binding one also alimony or as property settlement? Either contains for a specified condi- provide ment could for its modification under tions. But in absence of it would remain such unchanged. Why for should not such incorporated if binding alone be on the court it is approved? decree and
My position agreed if to a division have property, or one division, of them a and that without approved by fair equitable,' been the court as whether incorporated not, forth in the decree sets obligations the full sum their not be subsequent agreement If modified without a made them. they agreed on maintenance, have not the court .may, upon application, provide which is then applicable rules thereto, to modification under the agreed upon or if have not a division the trial action, may, on trial of the divorce divide the *11 principles appli- with accord settled law cable to the ease. refusing order modification
I would affirm the in this case parties had, by agreement, pertinent because incorporated in the decrees approved by the fair equitable, divorce and court as and liabilities. set forth With to defend- granting appeal plaintiff attorneys’ from the order ant’s agreed fees, entered into between defendant attorneys’ pay fees and costs incurred might plaintiff any action divorce which be filed. The no waiver on the contains as to attorneys’ fees, any granting further and the order such inasmuch as fees should sustained allowance therefor discretionary the trial court and there is here no discretion. claim abuse