*1 Jan. 22305. In Bank. A. No. 1954.] [L. Respondent, v. ERROL FLYNN, LILIANE CARRE Appellant. FLYNN, LESLIE *2 Appellant. E. Ford Jerry and Robert Giesler Harry L. and Gershon Herman F. Selvin Loeb, &Loeb Respondent. Liliane plaintiff 11, 1941, TRAYNOR, On October J. Flynn, ex- Errol Flynn husband,
Carre and her defendant for a division providing separation agreement ecuted a maintenance and community property and the agree- parties. The plaintiff minor child and the brought for divorce provided action ment also approved party either “this [the] may be made provisions hereof court and that terms and any decree which part become a comply parties ordered court, such and the be made plaintiff awarded provisions hereof.” pro- defendant, from a divorce between vided that “The and received in evi- hereto dated October confirmed and hereby ratified, approved and herein, dence and made hereby specifically incorporated herein the same is hereby ordered to and defendant *3 a this paid payments provided therein to be make all of the provided, and in the manner therein and him, at the times in,all comply to hereby ordered plaintiff and defendant are provisions of respects with and all of the terms and each obligations agreement perform all their there- and to said provided.” judgment incorporated The final under as therein by ref- foregoing provision of the decree the erence. to petitioned defendant the court order a reduc-
In 1950 payments provided agreement the the monthly tion in changed ground October, 1951, circumstances. In on the denying entered its order defendant’s motion the court jurisdiction modify it to the inter- ground the that lacked agreement because the locutory decree only. appealed. incorporated reference Defendant has was quoted provision of the inter- Defendant contends the merged agreement into locutory the the decree and continuing jurisdiction had under the court therefore modify provisions to of the Civil Code 139 section contends, Plaintiff on the other maintenance. support agreement incorporated by reference hand, that since 58 merger modifica-
only,
occur,
did
and that
event
precluded by
agreement.
tion was
terms of
Merger
is the substitution of
under
and duties
judgment
agreement
or
the decree
those under the
47,
upon.
Rest., Judgments,
or
action
(See
cause
sued
§
605,
a;
610
Hough
Hough,
Comment
Cal.2d
[160
15];
Cal.App.2d
Timm
McCartney,
P.2d
[85
920].)
question
extent,
any, merger
P.2d
as to what
if
occurred,
separation agreement
presented
has
when a
has been
action,
the court
a divorce
arises
various situations.
it
or
Thus,
necessary
determine whether
not con
tempt will lie
agreement,
to enforce the
whether
or
or
remedies,
other
such as execution
suit on the
judgment,
available,
are
whether
not an action
still
on the
itself,
maintained
whether
an order of the
there is
court that
be modified under
provisions of
139 of
section
the Civil Code.
any of
necessary
it
first
these situations
to determine
the court
merger.
whether
intended a
expressly
set out in the decree, and the court
performed,
merger
orders
it be
it
is clear that a
(Plummer
Superior Court,
intended.
Cal.2d
Superior
5];
Court,
P.2d
Lazar v.
[124
249].)
hand,
parties may
On
other
intend
validity
only
have the
established, and
have it become a
not to
the decree enforceable as
(See
Superior
Court,
Plummer
such.
Cal.2d 158, 164
5];
Howarth,
Cal.App.2d
Howarth
266, 272
Baxter,
670];
Baxter v.
59 Superior v. Lazar 5]; 158, 165 P.2d Court, 20 Cal.2d [124 Armstrong, 249]; 1 620 P.2d 617, 16 Cal.2d Court, [107 Superior v. 423-427; cf., Kent Family pp. Law, California Young P.2d Cal.App.2d 593, 595-596 106 Court, [235 ; P.2d 66-67 Cal.App.2d 65, 105 Superior Court, 39] v. [233 Cal.App.2d 356, 364 Shogren Superior Court, [209 v. can he no doubt present however, there 108].) ease, In the merger court that a and the intent as to the provided that the decree Thus, the should occur. incorporated herein made hereby specifically “is hereby ordered make all decree, of this and defendant paid by provided to be ...” payments therein him. merger intended, was it is it is determined Once requisite for the decree has the necessary whether to decide place permit enforcement its malities supersede. It is settled that a docu intended to it was by expressly apt refer incorporated either ment be operative to make an judgment or decree so as it into a ence (Federal Mtg. Corp. Farm v. order the court. part of the ; Title v. 1, 3 Ins. Co. Sandberg, 35 Cal.2d [215 721] ; Horton Inc., 71, 89, 90 P. Lux, Miller [190 433] t& ; Hogue P. v. 149, 158-159 Winbigler, 175 Cal. [165 423] Kelly ; McKibben, 54, 57 P. Fanning, 73 Cal. 560] Cal.App.2d Lang, 193-194; Kittle v. Court, Cal.App.2d 756, Petry Superior ; Weiler, Cal.App. parte Ex contends, however, that a docu Plaintiff effectively incorporated reference unless ment points permanent the court. part of the records She it is merely intro in this case the out that since could withdrawn or exhibit, an it in evidence as duced parties could not that therefore interested destroyed, and complete pic of the court “construct a searching the records obligations parties.” (See Price ture 101].) These Cal.App.2d 732, 735 Price, modifying justify considerations agreement be attached to the require that the appeal to believe, however, that are sufficient do not We decree.. final, now insufficient require us to hold clearly stated intent. its to effect agree- unnecessary whether the fact that the to decide It only prevents by reference its enforce- ment was (See Shogren Superior contempt proceedings. ment City 108]; cf., Court, *5 60 Superior Court, 509,
Vernon
38 Cal.2d
513-514
P.2d
[241
certainty
clarity
required
243].)
Greater
necessary
proceedings
support
to
such
than are
to
part
other
remedies or establish
as
purposes.
for
(See
the order
the court
modification
Superior Court,
158,
20
Plummer
Cal.2d
164-165 [124
252.)-
5];
250,
Moreover,
P.2d
39 Cal.L.Rev.
we are
here
of third
concerned with
who
have dealt
respect
specific
with
plaintiff
prop
with
defendant
by
ignorance
erty
covered
its terms. We
only
provisions
agreement pro
are concerned
of the
monthly
viding
payments
litigation
for
between the
circumstances,
necessity
Under these
themselves.
refer
ring
presents
insuperable
to an extrinsic document
no
barrier
giving
as
many
effect to the
is demonstrated
the court in modification proceedings
cases where
has taken
provision
extrinsic
to determine whether
evidence
for
monthly
payments
alimony subject
was one
to modifica
property
subject
of a
part
tion
settlement not
to modifi
g.,
(See,
Tuttle,
e.
Tuttle
419,
cation.
38 Cal.2d
420-422
587];
Codorniz,
Codorniz v.
34
P.2d
815
[240
32].)
Thus, in
cases in
it
is difficult
[215
impossible accurately
permanent
from the
determine
court alone
pay
records
the intended character of the
involved, courts do not hesitate
ments
to consider all of the
correctly
extrinsic
interpret
admissible
evidence
Certainly
greater
no
presented by
decrees.
difficulties are
per
mitting
give
reference to an extrinsic document to
effect to
expressed
clearly
the decree.
intent
Thus in
given
case, the decree
its
this
effect
intended
re
adequately
ferring to an
identified document, and the fact
the document is not
permanent
records
(Goatman
does not
vitiate
decree.
v. Fuller,
245, 251
35];
Sepulveda
P.
De
Baugh,
Cal.
[216
P.
223, Am.St.Rep.
Cal.
Lang,
Kittle v.
[16
;
Ladewig,
McLean v.
673]
An examination of the incorpo- rated reference makes clear that integrated bargain type it is an considered Dexter v. 873], Fox, and Fox v. ante, p. 36 Dexter, Accordingly, provi 881], p. 49 ante, contrary to modified monthly payments may not be sion provides that defendant shall its terms. per cent per year or totaling $18,000 payments make less. whichever is gross defined, as therein his income per year unless $9,000 than however, pay no is he to less event, *6 year per of $90,000 gross below the sum his income falls any year more, or for period for a of one and so continues neglect seek, to obtain or refusal except reason his wilful $90,000 fall below accept employment. or If his income does continues excepted reasons and so per year for other than the may peti provides he year agreement for more, a the payments the tion action to reduce the court the divorce $90,000 year or again rises a more. Since until his income to may modify the provided that the court the have agreement, pursuant terms of their payments ordered to the jurisdiction in accordance with the has to do so court Court, 733, 740 agreement. (Miller Superior 9 Cal.2d 625, 628 ; Hogarty v. Hogarty, 881].) At p. 49 Fox, ante, Fox v. see case, however, in this the time the order was entered had been unable that, although defendant record indicates remained months, for his income had not to work several reducing for order $90,000 year, below one and therefore an his improper. He renew payments would have been monthly payments for a reduction in the in accordance motion any property settlement with the terms justify. time the facts so
The order is affirmed. Spence, J.,
Gibson, J., Shenlc, J., Edmonds, J., C. concurred. agree I judgment. do
SCHAUER, J. I concurin the judgment, when of a declaration in a the mere fiat falsity of declara judgment itself the upon the face anyone bound, is even manifest, tion is this court or else falsity verity. accept entitled, as ‘‘ property that The The in the in this case statement hereby hereto is between ... settlement part de- and made a this specifically herein verity most undoubtedly to be but the was intended cree” (or judgment inspection judgment of the entire casual roll) “incorpo- truth discloses that part” thereof. “In no rated” therein or “made a case judgment any purpose until is a effectual entered.” 664.) judgment (Code Proc., To a Civ. enter means § copy “judgment perma- it in the book” that it so becomes (see 668), public Proc., nent and record Code Civ. so that § Any portion judg- he who lmow its reads content. judgment would ment not entered book be ineffectual any any purpose. error omitted to enter clerk judgment filed, which had been error of the if corrected; performed ministerial officer could be but he has duty truly judgment judgment his and the as entered final, as has become then rendered, and that neither power any person this nor other court has court add language judgment. words agree implications majority Neither do I with in the opinion may arbitrarily disregard that a whole or portion property of a has been fairly competent executed. Husband and wife are to contract respect property rights each other in to the same might (Civ. Code, extent “which either if unmarried.” 158, 159.) contemplated, public divorce policy When §§ agreement. favors the settlement *7 governing most basic rules freedom to contract and in- the tegrity require agreements of contracts that between com- fairly petent parties, good entered into and with a consid- eration, respected. correctly
The trial court denied defendant’s motion. CARTER, J., Concurring Dissenting. and I concurin the order, of affirmance the but dissent some of as the reason- ing majority opinion. set forth in the bar, interlocutory the case at the provided decree agreement “The between the 11,1941, hereto dated October and received herein, evidence hereby approved ratified, confirmed and and the same is hereby specifically and part herein made a hereby this and defendant is ordered to make all of payments provided paid by the therein to be him, at the manner provided, plaintiff times and the therein and and hereby comply defendant are ordered to respects all provisions each and all of terms agreement the said perform obligations and to all thereunder as therein provision of This the provided.” decree was by reference. In the the final incorporated in agreement entered into opinion it held that majority integrated property settlement an was between be modified the court in the could not agreement which agreement parties. With this between of another absence paragraph agree I above agree. do not holding I merge agreement into the inter- quoted is sufficient locutory of divorce. embody opinion if the decree does not
I am also verba, it is in substance in haec agreement either not be enforced as a part of it and operative an though agreement have This is true even the decree. approved the court. in evidence been introduced exhibit, merely introduced in evidence as an agreement is undoubtedly here, destroyed withdrawn or it could be as it by searching not, the records parties could and interested complete picture of the court “construct parties” (Price Cal.App.2d 732, obligations Price, 101]). P.2d 735 [194 Howarth, Cal.App.2d 670],
In Howartlh v.
support money
for
question
was whether an action
would
support
granting
lie
for
where the
on an
court
(Utah) approved the
divorce decree
but did
embody it in the decree.
It was held that an action would
also, Taylor
but not
decree.
(See,
lie on the
Cal.App.2d 518
Taylor,
575];
Robertson v.
Ross,
Robertson, 34
Ross
It should
Cal.2d 368
be obvious that where
properly
been
has not
embodied in the decree
performance
purports
order
but the
it and makes
provision
no
for
other
division
it either
property,
questions
support,
passed upon
has,
effect,
has
alimony.
Indeed,
no provi
denied
where a decree has made
modify
alimony,
provide
the court
later
it to
sion
cannot
alimony. This
is true unless the court in some author
jurisdiction
(Estate
ized manner has reserved
to do so.
Brooks,
Superior
Monroe
Cal.2d
Court,
; Long Long,
17 Cal.2d
*8
;
O’Brien,
409
O’Brien v.
A agreement, property rights whether involves it or support or allowances, both, in has not been embodied purpose merger, by decree for the or contempt enforcement proceedings full, unless it is set forth in or in substance, or physically the decree itself attached to the decree and expressly part by language made a thereof of the decree compliance its terms ordered decree. As was said in Price Price, supra: . . there is a difference for if incorporation there is an actual into the decree, standing the decree alone then carries itself within complete rights obligations measure parties. In the files, court’s or the decree itself supplies all necessary the information to whomsoever be If interested. recorded it announces to world the re- spective interests property involved. part “If on the other hand the is made a only the decree above is true. not One search reference ing complete picture the file could construct a of the judg from obligations might ment Reference be an exhibit alone. attached to pleading, judgment, to an to another even offered part evidence and withdrawn and not available as a any public record. In such a case it would follow attaching unincorporated the value to such an document would ‘ ’ only copy It or a true thereof historical. would neces sity sought produced have to be out and order to determine actually complete judgment provided. what the it could definitely produced, established, its terms then judgment represented by it could not be enforced. particular contempt proceed In it could not be enforced added.) majority ings.” (Emphasis it opinion, contrary case, being following said that the Price (Goatman v. Fuller, 191 Cal. 245, ; authorities P. 35] Sepulveda Baugh, 74 Cal. De 5 Am. P. St.Rep. Lang, Kittle v. Ladewig, Cal.App.2d 21, McLean 25-26 ; Newport Hatton, *9 624]), Matthews, P.
987]; Rosenthal disapproved. description Fuller, supra, an erroneous of In Goatman v. into property certain real involved in a lease was carried over judgment in on the lease. The finding's and an action granted plaintiff’s complaint, motion amend the trial court to give findings judgment pro nunc tunc to de- and correct scription. ques- “Moreover, The court there said: it is not description originally contained tioned that the land judgment only Therefore, is erroneous. effect respondents a reversal of the order would be to remit an to they equity, clearly action which would be entitled to judgment (Young Funk, have amended. Cal. 107 ; supra McGrew, (190 In re Pac. 804)].) To obviate such further proceedings, let ’’ order be affirmed. Sepulveda Baugh, supra, quiet In De a title action was A involved. tract was described certain metes and bounds exception with an being was described as recorded books, certain numbered certain pages, numbered in the Angeles County. records of Los The court there held that description while the was not an “ideal” one, it was and judgment uncertain doubtful that the was not “void.” public here was The reference records. Newport Hatton,
In supra, an action to establish the right plaintiffs in certain land proceeds and question involved. sale thereof was The was which 75 acres quarter half of a the south certain section was involved. judgment There the refused declare the nullity a description because the defective and said that whether description was defective must be tested rules applied ordinarily subject. evidence Matthews, In Rosenthal v. supra, another description of complaint The definitely land involved. correctly premises; judgment described the correctly described it excepted from parts but its effect certain of the land “as grain by were sown to during defendant the fall of 1890 winter of 1891.” The court held that the land could be identified extraneous evidence “as in cases of the removal destruction stakes or other monuments called patents.” for in deeds and Ladewig, quiet supra, McLean title action was
involved. It was held there that when property is well de- by name, conveyance by designation
scribed is sufficient subsequent particular description and a could not be held to be used in the sense of restriction. Lang, supra,
In Kittle v. it was said: “It is true that find- judgment ings, thereon, as well as the based should be definite sufficiently and certain. least At should be clear party comply definite to requirements. enable with their merely . . . here involved is an order to the plaintiff defendant to turn over to personal such partnership assets pos- now in defendant’s *10 session as are described in I, Exhibit which exhibit is made findings judgment by and reference. Defendant possession admitted he still had in equipment his much of this but claimed title it under quitclaim deed, to the terms of the which deed the court found particular was ineffective as to this personal property. “As between the to this action, we believe find-
ings judgment, respect, sufficiently this are clear and comply definite to enable requirements.” defendant to with.its quite apparent It is only Kittle case one is the of these at all like the case at bar or the Price case which has erroneously disapproved. been In others, all the defective descriptions of property real were involved and, in all of them, possible it was to make deficiency. certain the In a divorce action property where the agreement sufficiently incorporated into interlocutory and final decrees, may an action brought still be on agreement itself but, my opinion, may brought not be to judg- enforce the ment because nothing there is in the to It enforce. apparent is also majority that a of this really believes that the insufficiently incorporated in the de- ‘‘ cree, they say: These justify considerations modi- fying appeal decree on require to that the agreement be attached to the decree. We do believe, however, they are require sufficient to us to hold that decree, final, now to clearly insufficient effect its stated ’’ intent. great deal to This case adds the confusion which has to incorporation. heretofore existed as what constitutes an say present To facts here incorporation that the sufficient say interlocutory decree, that the and then which is now appeal require final, attachment modified height absurdity. thereto is the It also is an trap designed wary unwary to catch both effective attor- honestly conscientiously protect trying neys who are absolutely holding here, it is their clients’ interests. Under will, attorneys whether this court to know impossible incorporation, years there was an later, determine that time or not it was intended at the order one whether interlocutory decree. here. my incorporation opinion there was no prevail rule should is that proper rule and the which fixing right husband and wife
a valid between following though support alimony divorce, even it is integrated settlement, be altered property with a cannot ensuing action, or, the court in the divorce if agree decree, modified, in the the latter not be unless the provides. may, course, ment so an Such disregarded overreaching. if it is with fraud or tainted there merger in However, subject after the decree is not except ordinary judgments to modification to the extent that subject logical are to attack. This is the result flows Adams, from Adams v. We 265]. separation agreements there held in which the provisions and maintenance are so interwoven that con part of parties, stitute a a division alimony, sixbjeet and thus not nature are not merger modification except either before after as mentioned *11 in the above stated rule. It was said in the Adams case (p. 624) agreements “Property occupy that: settlement position favored in the of law this state and are sanctioned
by (Hill Hill, the Civil Code. 82, v. 23 Cal.2d 89 [142 417]; Hensley v. Hensley, 284, 179 ; 287 P. [183 445] Code, 158, 159.) agreements usually Civ. Such are made §§ of negotiations, with the advice counsel after careful courts, legislative prefer in sanction, agree accord with litigation. (Hill p. 89.) ment rather than Hill, supra at parties finally When the agreed upon have division of property, their the courts are loath to disturb their except equitable for A considerations. settlement agreement, therefore, is not fraud or com tainted pulsion or relationship is not in violation of the confidential of binding (Hough is valid and the court. Hough, ; 26 614 Belknap, Cal.2d Estate [160 15] 66 Baxter, 651-652 Baxter v. Cal.App.2d 676, Brown, Brown v. Cal.App. ; McCahan, P. McCahan 595] App. 176,183 [190P.460].) provide
. . The solely contract even support for and maintenance reference to of property. without a division contracts, equitable, These if though are enforceable even ’’ presented in to the court principles divorce action. Those “property were stated as to agreements,” yet equally applicable agreements alimony. are for It is true agreements settling property rights specifically are au thorized agree the statute but the same is also true toas for alimony. ments 158 of provides Section the Civil Code that: “Either any engagement husband wife enter into other, transaction with the or with other person, respect ing property, might which either if unmarried.” Section 159 by any reads: “A husband cannot, and wife contract with other, legal each alter their relations, except as to property, except they may agree, writing, an immediate separation, provision support make either for them during "and separation.” children such (Emphasis added.) indicating And propriety further agreements, provides: such section 175 “A husband aban doned his wife support liable her until she offers to return, justified, by unless she was his misconduct, abandoning nor him; is he liable for support her when she living separate from him, by agreement, unless such stipulated agreement.” in the agreements Such are en binding upon forceable and parties, if equitable, even though presented court the divorce action. Adams, supra, Cal.2d 624; {Adams Sanborn v. Sanborn, Cal.App.2d ; Brown Brown, 830] Cal.App. There are cases that hold or incorporation state that support agreement in the prevent divorce decree does not (See modification of the decree. Adams, supra, Adams v. 621; Hough v. Hough, supra, 605; 26 Cal.2d Puckett v. Puckett, 21 ; Cal.2d 833 and cases cited in cases.) those Those cases theory are based on the that the in an general action power divorce has alimony over power and that such away by cannot be taken alimony as to considering question either when action, the divorce or in considering question of modifi- cation where the has been incor- *12 porated in the power because it has to determine fault upon alimony which an of may depend award (Civ. Code, 139); and public that there is a policy against possi- § the bility of spouse that the care the will public become a charge provision. adequate agreement does make the where of the Civil Code alimony, permanent section regard to for an offense granted divorce is provides that when the support “may” provide for the wife’s the husband, court the subject. The modify on that “may” its orders by him and alimony— temporary “may” require payment the court Code, (Civ. during pendency of the action. the support authority of is that the court 137.) It will be noted § mandatory The language. permissive rather than stated in parties wording propriety contract- does exclude the by subject contract. ing being or the court bound on the conjunction in Those sections must be read section expressly It is not supra, which those contracts. authorizes Legislature expressly supposed that the would authorize to be the same it to contracts and at time leave the whim those any of the divorce court effect caprice whether be right them. given given freedom contract any argument certainly that a 159, supra, section eliminates competent to contract that she needs married woman is is not other protection the court that afforded to Moreover, contracting parties. it must be noted that given authority is to divide court in the divorce action community spouses property according to various (Civ. community Code, provides fault factors § assigned property yet “shall” there set is forth), as it by legion dividing prop- held of cases that contract such erty presented to the in the is when divorce action (Adams binding Adams, supra, court. supra.) cases
621, and cited The same construction should given to 137 and 139 of the Civil is sections Code. It nothing in true that is said section as there is in section modifying property 139, about division orders one court, which understandable because that done doing does not of a series of act and involve acts referring monthly payments support, like I future and am holdings property binding division contract presented on the court when divorce action. The fact giving that the code sections authorize to fault consideration alimony requires the award no different community result because the same is true and as are to contract division, free as to negotiations Code, supra), give (Civ. § I hold, therefore, consideration that factor. would nothing there is in the Civil Code discussed which sections *13 prevents giving purely support nor contract, effect which subject makes to modification when the contract merged therein. policy persuasive. (Civ. are not factors The statute Code, 159) expressly policy declares parties § subject. they may, contract on this If given effect should be Being fully they to their advised, contracts. have made question their support. choice Having made the they arrangement, given stability are entitled have it be arrange order that each future his affairs some degree of certainty. contingencies might future alter the they may provide situation for them in their Indeed, contracts. giving flexibility terms the contract to it would desir easily able and achieved. Courts do not make new contracts disregard which contracts made have on a subject concerning they may lawfully (6 contract. seq.) Jur. 326 et course, they
Of need not contract unless desire They so. do leave the determination to the court. If they do present contract but do not it to court in action and the subject court makes a determination on support, then have fixing waived the contract as their obligations; the decree then measure of their rights and presented duties. If the contract is to the court approved and is but not embodied in the heretofore decree as described, then remedy on the contract not the decree. Such is the case at bar.