CHARLES W. FOUST, Respondent, v. ISMAY M. FOUST, Appellant.
L. A. No. 23552
In Bank. Supreme Court of California
Oct. 9, 1956.
121
Herman Wildman for Respondent.
SPENCE, J.---Defendant appeals from an order quashing execution and restraining the sheriff from selling plaintiff‘s property. The only question to be determined is whether a property settlement agreement had been so merged into an annulment decree that its provision for monthly payments became an operative part thereof, enforceable by execution. The trial court held that it had not but the record does not sustain its ruling.
The parties separated 14 years after their marriage. Plaintiff husband then commenced this action for “annulment of marriage and determination of property rights.” Defendant wife cross-complained for divorce and the settlement of property rights. Thereafter and on July 21, 1943, the parties entered into a property settlement agreement and stipulated that an annulment decree might be entered declaring the marriage null and void from its inception. The property settlement agreement provided, among other things, that plaintiff pay defendant $50 a month for life or until her remarriage. The agreement was attached as an exhibit to the stipulation, and both documents were filed with the court. The annulment decree was entered July 22, 1943. Following the wording of the stipulation, the decree ordered and adjudged: “That the properties and property rights of
Plaintiff failed to make the prescribed payments and became indebted to defendant in the sum of $2,405. Upon affidavit setting forth plaintiff‘s default, defendant procured the issuance of a writ of execution on June 21, 1954. After levy had been made by the sheriff on plaintiff‘s property, plaintiff made a motion to quash the writ, based upon his affidavit reciting the circumstances of the parties’ agreement. Both parties in their affidavits referred to the agreement as “embodied in and made part of the judgment.” The court granted the motion, thereby holding that the parties’ agreement had not merged in the decree so as to be enforceable by execution. We have concluded that the trial court‘s order granting the motion must be reversed.
The nature of the agreement, its attachment to the stipulation for judgment, the filing of both documents with the court, and the plain language of the stipulation and the judgment entered thereon make the conclusion inescapable that merger was intended, thereby substituting rights and duties under the decree for those under the agreement. (See Rest., Judgments, § 47, com. a; Flynn v. Flynn, 42 Cal.2d 55, 58 [265 P.2d 865]; Hough v. Hough, 26 Cal.2d 605, 609-610 [160 P.2d 15]; 1 Armstrong, California Family Law, pp. 810-811.) Since there is no evidence to the contrary, the trial court‘s conclusion that merger was not intended is not binding on this court. (Fox v. Fox, 42 Cal.2d 49, 52 [265 P.2d 881]; Estate of Platt, 21 Cal.2d 343, 352 [131 P.2d 825].)
It was held in the Flynn case that incorporation of a property settlement agreement into a decree by reference does not preclude a merger. (Flynn v. Flynn, supra, p. 59.) When an agreement has been incorporated into a decree, it is as effectively a part thereof as if recited therein in haec verba. It is of no consequence here that the agreement was complete in itself, for it lost its identity in the decree. It is now the decree that declares the rights and obligations of the parties, for it “ordered and adjudged . . . that the prop-
Nor is the decree lacking in potency to support the execution process because the precise terms of plaintiff‘s monetary obligations do not appear on its face. Execution has been defined as “a process in an action to carry into effect the directions in a decree or judgment.” (Painter v. Berglund, 31 Cal.App.2d 63, 69 [87 P.2d 360].) It has been allowed in enforcement of the provisions of settlement agreements where compliance was ordered by the decree. (Di Corpo v. Di Corpo, 33 Cal.2d 195, 201 [200 P.2d 529]; Cochrane v. Cochrane, 57 Cal.App.2d 937, 938 [135 P.2d 714]; Shields v. Shields, 55 Cal.App.2d 579, 582 [130 P.2d 982].) While the decree should state with certainty the amount to be paid (28 Cal.Jur.2d, § 76, p. 710; Kittle v. Lang, 107 Cal.App.2d 604, 612 [237 P.2d 673]; Wallace v. Wallace, 111 Cal.App. 500, 506-507 [295 P. 1061]; D‘Arcy v. D‘Arcy, 89 Cal.App. 86, 92 [264 P. 497]), it is sufficient if the amount may be definitely ascertained by an inspection of the record. (49 C.J.S. § 76, pp. 198-199.) Thus, the amount for which a judgment was rendered may be aided by reference to the pleadings in the case or the verdict. (1 Freeman on Judgments, 5th ed., § 84, pp. 148-149.) Likewise here, the monthly payments owing by plaintiff as adjudged by the decree may be ascertained from the parties’ agreement, which was attached to their stipulation for judgment and filed as part of the record.
Plaintiff unavailingly relies on cases involving the enforcement of support decrees by contempt proceedings, requiring therefor an express order to pay the money due. (E.g. Plummer v. Superior Court, 20 Cal.2d 158, 163 [124 P.2d 5]; Miller v. Superior Court, 9 Cal.2d 733, 737-740 [72 P.2d 868].) Contempt proceedings are criminal in nature, and the prescribed procedural safeguards must be accorded the alleged contemner. (City of Culver City v. Superior Court, 38 Cal.2d 535, 541 [241 P.2d 258].) The prime purpose of such proceedings is punishment for disobedience of a valid order directing performance of a specified act. Liability for such drastic punishment “should not rest upon implication or conjecture” but rather upon an order expressing in “clear, specific and unequivocal” language the act required. (Plummer v. Superior Court, supra, p. 164.) It was therefore said in the Flynn case that “greater certainty
Whenever it is intended that a property settlement agreement shall become merged in the decree, it is undoubtedly the better practice to have the terms of the agreement set forth in haec verba in the decree or by way of exhibit attached thereto, and to have the court employ explicit language in the decree showing that the rights and obligations of the parties are adjudicated by the decree in accordance with the terms of the agreement. And while “greater certainty and clarity” may well be required to support contempt proceedings, we are satisfied that the language of the decree here shows that the agreement, filed with the stipulation, was merged in the decree, and that the manner in which the merger was effected makes the decree sufficiently certain to render it enforceable by execution. To hold otherwise would require the parties to engage in needless further litigation to merge the agreement into another decree or judgment in order to obtain the enforcement thereof by any legal process. Such idle act should not be required.
The order appealed from is reversed.
Gibson, C. J., Traynor, J., and Peters, J., pro tem,* concurred.
CARTER, J.-I dissent.
The majority opinion holds that the property settlement agreement involved here was so incorporated in the annulment decree that its provisions for monthly payments are enforceable by the issuance of a writ of execution on the decree. The property settlement agreement was attached as an exhibit to a stipulation entered into by the parties that their marriage was null and void from the beginning. The annulment decree provided: “That the properties and property rights of plaintiff and defendant herein are adjusted, settled and distributed as per the terms and conditions of that certain AGREEMENT dated July 21st, 1943, executed by plaintiff and defendant herein, a full and true copy of which AGREEMENT is on file herein attached to said Stipulation marked ‘Exhibit “A,“’ and which is hereby approved by the Court and by this reference embodied in and made a part of this judgment.”
“In any of these situations it is first necessary to determine whether the parties and the court intended a merger. If the agreement is expressly set out in the decree, and the court orders that it be performed, it is clear that a merger is intended. (Plummer v. Superior Court, 20 Cal.2d 158, 165 [124 P.2d 5]; Lazar v. Superior Court, 16 Cal.2d 617, 620 [107 P.2d 249].) . . . In the absence of an express order to perform all or part of the agreement, it may be difficult to determine whether or not a merger was intended.”
I, of course, am firmly of the opinion that if the decree does not embody the agreement either in substance or in haec verba, or unless a copy of the agreement is physically attached to the decree, it is not an operative part of it and may not be enforced as a part of the decree. “This is true even though the agreement may have been introduced in evidence and
Exhibits may be, and as a matter of practice usually are, withdrawn, and thus are no longer a matter of record which may be “inspected.” When Exhibit “A” in the instant case is withdrawn there is nothing whatsoever in the judgment to show the rights and liabilities of the parties. In a case such as this, where there is no incorporation and no order of the court directing compliance with any of the provisions of the agreement, any action for relief must be on the agreement itself which should be accorded the same dignity as other contracts, but not the same dignity as a judgment of a court of record. There are here no “directions in a decree or judgment” (Painter v. Berglund, supra, 31 Cal.App.2d 63, 69 [87 P.2d 360]); there was no order to comply with the provisions of a settlement agreement in the decree (Di Corpo v. Di Corpo, supra, 33 Cal.2d 195, 201 [200 P.2d 529]; Cochrane v. Cochrane, supra, 57 Cal.App.2d 937, 938 [135 P.2d 714]; Shields v. Shields, supra, 55 Cal.App.2d 579, 582 [130 P.2d 982]); the decree did not state with certainty the amount to be paid (28 Cal.Jur.2d, § 76, p. 710), and since exhibits are ordinarily withdrawn, the amount to be paid would be a matter of speculation and conjecture. Why not just take the complaining party‘s word for what the defendant owes? The majority holding here will lead to endless difficulty--affidavits and counter-affidavits will have to be filed setting forth the terms of the property settlement agreement since those terms are not matters of record. In every instance, since the majority has held, and continues to hold, that it is a question of fact whether the court and the parties intended an incorporation, that matter will have to be determined and then redetermined by an appellate court and finally by this court which can say, blandly and without even a tinge of conscience, that “Since there is no evidence to the contrary, the trial court‘s conclusion [or the appellate court‘s conclusion] that merger was not intended is not binding on this court. (Fox v. Fox, 42 Cal.2d 49, 52 [265 P.2d 881]; Estate of Platt, supra, 21 Cal.2d 343, 352 [131 P.2d 825].)” It is obvious from the concluding paragraph of the majority opinion that even the majority of this court
By a sort of roundabout reasoning it is also concluded here that while (speaking of the contempt process) “Liability for such drastic punishment ‘should not rest upon implication or conjecture’ but rather upon an order expressing in ‘clear, specific and unequivocal’ language the act required (Plummer v. Superior Court, supra [20 Cal.2d 158, 163], p. 164),” implication and conjecture may be indulged in where merely the execution process is involved. Apparently, by implication, we are to assume that execution may be utilized by indulging in conjecture and speculation even though there is no clear, specific and unequivocal language in the decree. No other conclusion can be reached when the facts of this case are taken into consideration.
In the instant case, as has been heretofore noted, the property settlement agreement was attached merely to the stipulation---not to the judgment---and the agreement and stipulation were described as Exhibit “A.” We said in Bank of America v. Standard Oil Co., 10 Cal.2d 90, 94 [73 P.2d 903], that “As between the petitioner and the ranch company, the judgment which is now on appeal is only an adjudication that the owners of the bonds originally secured by the deed of trust, or their successors, are entitled to the trust fund as against other claimants. It does not completely fix the liability of the petitioner to the ranch company. ‘A final decree in equity must state in plain figures the amount which a party must pay in the way both of debt or damages and costs, as well as every other matter adjudicated.’ [Citations.] When the amount is not so stated and does not appear in the judgment roll, it cannot be supplied by an affidavit submitted, ex parte. The superior court had no authority to order a writ of execution to issue upon the facts stated in the affidavit made on behalf of the ranch company and its writ should be recalled.” It was also said: “Before an execution may properly issue the judgment must be for money and the amount due and the persons to whom payable must be
The majority opinion in this case goes farther than any of the other ill-considered decisions of this court in this field (Fox v. Fox, 42 Cal.2d 49 [265 P.2d 881]; Flynn v. Flynn, 42 Cal.2d 55 [265 P.2d 865]; Dexter v. Dexter, 42 Cal.2d 36 [265 P.2d 873]; Messenger v. Messenger, 46 Cal.2d 619, 630 [297 P.2d 988]) since here there was no incorporation of the agreement whatsoever nor any order by the court directing compliance therewith. Yet it is held that an incorporation was “intended” and that execution may issue.
For the reasons heretofore set forth, I would affirm the order.
SCHAUER, J., Dissenting.---As stated in the majority opinion, “The only question to be determined is whether a property settlement agreement had been so merged into an annulment decree that its provision for monthly payments became an operative part thereof, enforceable by execution. The trial court held that it had not . . .” The majority reverse.
In my view the record as related in the majority opinion supports, and the better practice requires, the conclusion reached by the trial court. (See Messenger v. Messenger (1956), 46 Cal.2d 619, 637-638 [297 P.2d 988]; Flynn v. Flynn (1954), 42 Cal.2d 55, 61-62 [265 P.2d 865].) Accordingly, I would affirm the judgment.
SHENK, J., Dissenting.---I concur in the reasoning and conclusions of Mr. Justice Carter in his dissenting opinion.