*1 сontracts, wage guaranteed annual aside to the end employee, upon purport insofar to confer a benefit meaningless. will be judgment.
I would reverse J., and concurred.
Gibson, Traynor, J., C. petition rehearing was denied June Appellant’s for a J., were of Carter, Traynor, J., J., 1956. C. Gibson, granted. opinion petition should June 6, A. No. In Bank. 23276. [L. 1956.] T. MESSENGER, Appellant, BERTHA v. THOMAS J. Respondent. MESSENGER, *3 Sidney Sharp, J. W. Herbert M. Braden and Lawrence W. Appellant. Clawson for
Daniel Fadenrecht for Respondent. M.
TRAYNOR, J.Plaintiff and defendant were married in separated January 1936 and 3, 1951, 1950. On exe agreement. plaintiff cuted a settlement Thereafter complaint January filed for divorce, 8, 1951, and on an interlocutory granted ground decree was to her on cruelty. approved incorporated extreme The decree provisions expressly reference the per ordered month рay $500 defendant “as ’’ final entered settlement decree was January 16, 1952. applied December, 1953, plaintiff for an order of execu- In arrearages plus $6,700 tion for claimed and secured interest why an order to cause defendant should not be held in show contempt failing payments. to make the overdue De- why pay- then an order to show fendant secured cause for in provided ments the decree should not be reduced to together, and per month. The three matters were heard $300 judgment reducing monthly pay- the trial court entered finding contempt defendant was ments and payments. The also con- failure to make the overdue against cluded an execution should not be issued grounds properties no defendant, on the that he “has successfully against such execution could be monies which such execution levied, that the manner which could charge placing a constable in be served would defendant; daily receipts and, as the defendant is a professional man, finds that such an action would this Court defendant; discredit to the result considerable if such that, taken, court further believes action were surgeon] earning ability physician defendant [as degree materially to such a that it would would be reduced pay plaintiff the ability of the defendant to affect ’’ by this The court ordered that as set Court. reduced provide be amended per month, and income tax on an payment $375 for the year per month in- $4,500 per $500 instead income year. $6,000 per income of found that the come on an It tax plaintiff from defendant to Marсh was due amount pay defendant to on or before that $5,668 $800 and ordered per month in addition to the reduced date and $50 applied on the balance due. The issuance of payments to be long pay- so as defendant made these suspended execution default, an execution was to issue ments, but in the event forthwith. contends that appeals. She
Plaintiff payments integral tax and income part of the inseparable *4 are therefore not to modification. and parties provided: agreement In their wife, are husband and “Whereas, hereto and agreed property to divide all parties hereto have said them; and rights between property and any arrangement or parties do not make “Whereas, said proceedings by arrangements as to any divorce either leaving to agreement, the determination of such Court, action to the hut make and enter into this purpose fixing adjusting for the personal and property rights; and
“Whereas, represented fully has that he has [husband] community disclosed to the property all [wife] every nature, being kind and and that the same is and has been divided as between the under the terms con- ditions of this as hereinafter set forth.
“Now perma- and in consideration of the Therefore, lasting nent and division and prop- all their rights every erty nature, separate kind or whether community they hereby property, mutually covenant and agree, each with the other follows, to wit:”
Paragraphs 1 and 2 provided then for a division of the property, present and in the proceeding the trial court fоund plaintiff property $32,850 received worth and that de- $31,375. fendant received worth Paragraph provided agrees pay “That the husband to to care, the wife her maintenance and support, the sum of per Five Hundred ($500.00) payable monthly month, Dollars in advance, commencing January 3rd, 1951, receipt of hereby which first month’s acknowledged, such ’’ obligation pay continue until wife dies or remarries. Paragraph provided agrees “That the husband pay from hereof he date will to the wife a sufficient amount over and above the Five per ($500.00) Hundred Dollars alimony, agreed month paid, pay herein to be the income tax, any, paid by to be the wife on pay- . ment. . .” provided also that “It is further understood agreed waives, that the wife relinquishes, abandons, and right,
releases all her title and interest in to any and all which is hereinbefore apart shall be set husband, any and become and to and all every property of nature which said husband now has or that may acquire own, or right he hereafter all to future from or maintenance and husband, the said ex- cept expressly as herein otherwise provided, hereby waives, relinquishes any releases all prop- inherit erty whatsoever which said husband now possesses owns or may possess, or which he hereafter own or or of which he possessed, die and all seized which is hereinbefore *5 624 apart
set Mm shall he and remain forever as between the separate property hereto the of husband.” A the provision husband, except similar related to the that his waiver support quali- all to future and maintenancе was not - clause, “except expressly fied the as herein otherwise provided.” complaint per pay-
Plaintiff’s referred to month $500 the prayed approve ments as and that the court the property it agreement, part decree, settlement make the care, pay per and order defendant “for the $500 month ’’ agreed. support plaintiff, maintenance as therein interlocutory agreement, approved made decree part by reference, expressly of the decree de- ordered pay per care, fendant month “for the maintenance $500 agreed support plaintiff, property in said settle- agreement.” provided The final decree that “It ment interlocutory wherein further ordered and decreed that said аny alimony” provision provision for “be decree makes binding hereby same is made on the affected and the thereby full, as if herein forth in and that the same set property decree relates to interlocutory wherein said hereby same is parties hereto, said be and the assigned in with the terms thereof to the accordance thereto. therein declared to be entitled Adjudged that the “It Is Decreed, Further Ordered divided, community parties hereto is ordered property agreement ap- in accordance with Interlocutory herein Decree entered proved support payments provided as are for therein are order hereby ratified and confirmed.” provisions of merely confirms the final decree
Since agree- property settlement interlocutory decree and the interlocutory pay- ordered decree that ment, and since the agree- agreed in said “as be made ments agreement to determine whether ment,” we must examine the pay- income tax monthly payments provisions that divide the from the separable ments are inseparable integral are an or whether property, inseparable property and therefore of the division If for settlement. the consideration part they cannot now be modified. category latter they fall into the 873]; P.2d Adams 36, 40-41 Dexter, 42 Cal.2d (Dexter v. [265 265].) P.2d 621, 625 29 Cal.2d Adams, [177 v. provisions fall contention that support of his In category defendant stresses fact the former within expressly are for the wife’s alimony 1(h),1 3,2 and 153 as paragraphs referred alimony in principal characteristics have one con Similar if the wife dies remarries. terminate rejected v. 42 Cal.2d Dexter, Dexter tentions 49, 52-53 Fox, Fox 873]4 adopted 881], pointed out the labels it was where policy *6 that this insurance] as to [life is and 1 "It understood beyond the if, husband, paying the control of or reasons due to financial reverses other necessary money purpose of for the to thereon it borrow husband, by alimony agreed paid but the to be the hereinafter policy purpose, for the borrow on said the husband for no other (Italics purpose. paying alimony, purpose no ...” of said but for other added.) 2 ‘ care, agrees pay mainte the for her husband to to wife ‘That the per support, (§500.00) sum of Five Hundred and the nance month, payable Dollars January commencing 3rd, monthly advance, 1951, in on acknowledged, hereby receipt such first month’s of which (Italics obligation pay to wife or remarries.” to continue until the dies added.) 3 ' agrees pay date he will to the ‘That the husband that from hereof (§500.00) over above the Five Hundred wife a sufficient amount and alimony, paid, per pay in to the month herein to be Dollars alimony payment, tax, any, paid by if on ...” come to be the wife said (Italics added.) monthly payments contends, however, 4 "Plaintiff that since were the remarriage on or described as to terminate in that her death were prayer complaint, they points of should be out the her so treated. She they property as it would have been were intended a division of agreement provide they more for the to that should continue reasonable given paid. more until a had been These considerations would be amount hand, presented whether, persuasive if the the the issue was on one community monthy payments solely prop part were of a division of the or, hand, alimony. case, erty, solely When, in as how the other ever, an provision support the made for and maintenance have the part integral property agreement, their settlement the ordinarily payments will dual To the that have a character. extent they designed discharge obligation support are will and maintenance the they ordinarily obligation the and thus reflect characteristics of that alimony. hand, have the extent other indicia On the [Citations.] community itself, they represent property that division of the inseparable part constitute for or an of the consideration the settlement, they alimony, accordingly not modified are cannot be changing agreement without parties.” the terms of the settlement contends, however, 5 ‘‘Plaintiff that since the labeled were subject alimony, remarriage, were her to cease on and were to modifica pension, tion to the event of a reduction defendant’s is evidence there support finding solely alimony implied they the trial court’s that adopted . . . labels the are modification. conclusive, agreement must since the as a whole. [Cita considered Moreover, pointed case, as out the Dexter tions.] the extent are not controlling conclusive and is not monthly payments support for have some of indicia alimony. supra, In this case in Fox v. Fox, Dexter, as v. Dexter Flynn supra, Flynn, v. 865], Cal.2d 60-61 Finnegan v. 762, 765 Finnegan, 873], provision support integral have for made part of their property settlement did Not purpose fixing “enter into this adjusting their personal property rights” made but support part “an inseparable of the con (Dexter sideration Dexter, settlement” pp. supra, 41-42) support at expressly agreeing provided paragraph 3, maintenance like division provided of property paragraphs 1 and was “for permanent and in lasting consideration of the division of all property rights every kind and nature, community separate property. whether or ...”
Moreover, page 52, supra, as Fox v. at Fox, wife waived “all future maintenance and from pro husband, except as herein othеrwise vided,” i.e., in paragraph promise 3. Her not to seek express alimony except provided could not “be abrogated changing agree without parties.” {Ibid.) Similarly, ment of the waiver since this the consideration for the husband’s *7 support make the not seek payments, he likewise could changing property modification thereof without the settle therefore, parties. clear, ment of that if the It is parties support provisions the meant the maintenance and to alimony separable they of property be from a division the (see not Helvern, would have included this waiver v. Helvern Cal.App.2d an 482]), 139 829-830 P.2d for order 819, [294 subject allowing alimony any to (Hough is revision at time. 15].) v. 26 Hough, 605, Cal.2d 612 P.2d [160 of conflicting In the extrinsic as to absence evidence meaning interpreta agreеment, the of court’s the the trial (Fox 42 binding Fox, tion it is v. Cal. of not this court. 881]; Platt, 2d Estate of 825].) The evidence offered introduced primarily ability was this case concerned with defendant’s designed obligation discharge support the of are maintenance, they ordinarily and alimony. will have some of indicia the of ’ ’ arrangements with financial pay, expenditures, his various his money property hus- father, and the other the his with agreement. ex- band and wife received under the meaning any bearing on trinsic evidence that the offered had showing property of the was the de- parties. of Proof property value the received the greater part community property fendant received the support provisions be some were would indication that the part community proрerty. lieu of of share the plaintiff’s finding however, trial reasons, why There are two the court’s part com- greater defendant receive not the the did munity property support not conclusion that does its support provisions not of the consideration property subject division and were therefore modification. finding
(1.) was on a That based reevaluation assigned agree- accounts receivable defendant under the parties In the estimated the value of ment. $15,000. the accounts at The trial court estimated their value purpose determining $5,000. at It is obvious that meaning agreement, value that is is material agreement, in their not the value estimated years later. value estimated the court three (2.) had that when the Even the evidence showed plaintiff agrеement, made their understood that would $32,850 property defendant would receive receive worth support property $31,375, it would not the conclusion worth agree modification. The payments were that the lasting “permanent division” all ment community property. rights separate as their well “ (supra, p. 43) at Dexter, As stated in Dexter [A]t may made, the time a community of their rather uncertain as to which ordinarily know the court separate, how than will would, or how find the facts divorce action will agreement, exercise its discretion acceptable the absence alimony. awarding The amicable dividing questions respect with doubtful adjustment these rights of and maintenance to support consideration supply alone sufficient present case, in the Thus entire [Citation.] *8 they to settle their and desired recited that parties friendly rights ‘by agreement, in support and maintenance Moreover, purpose.’ for resorting stead plaintiff since her ground secured divorce on the of extreme cruelty, parties had the not rights settled their by agree ment, the court in could its discretion plaintiff have awarded all of community property and alimony less than she agreement. received under her In such however, case, alimony subject would be to reduction in changed the event of circumstances. Plaintiff agree was entitled to instead to equal division the community property exchange for support payments and maintenance that not could be reduced. Accordingly, community the fact that property was equally bearing divided has no validity provision agreement whereby both rights waived all support and maintenance provided other than as therein. ” present In very case fact that the find [Citations.] ing of respective values was on conflicting based evidence indicates that the were in doubt as to the value of they their and they that meant what said when provided both the division of their property and the monthly payments were “for and in consideration of the permanent lasting and division and settlement of all their rights every and kind nature. Moreover, ...” absence the court could have awarded plaintiff community all of alimony, and less just case, as the Dexter agree she was entitled to in substantially equal stead to a division of community prop erty exchange support maintenance could reduced.
When as this case the clearly have ex pressed “purpose fixing their adjusting personal property rights,” provided have provision that the “for permanent consideration lasting division and settlement of all their property rights every nature,” kind and and the wife has waived “all support to future maintenance and , except . . . expressly provided,” herein otherwise the conclusion is in escapable provisions have made the for support and integral inseparable maintenance an part of their prop erty With such conclusive evidence of integration, and maintenance or would be to modification expressly provided. (See Flynn so Flynn, supra, Cal. 55, cited.) may not, 2d and cases The court however, (Code Proc., “insert what has been omitted” 1858) Civ. §
629 clearly expressed thereby abrogate the parties. failing in erred
Plaintiff contends that the trial court conditionally in contempt of court and defendant to find of execution. There was suspending the issuance of a writ his after defendant had been twice married evidence that no other plaintiff, from he had assets than the divorce that upon which an execution practice from medical income his partial stroke levied, and that he had suffered a could be necessitating practice. from his On the basis loss time defendant’s income and evidence and evidence of this finding de justified that expenditures the trial court was contempt Court,” not in fendant, arrears, “while been obligations of said defendant have that “the financial prevented payment of the of such as to have a nature so every month.” sum of each and $500.00 rely question execution, respect both With to the 657], 144 Lohman, 29 Cal.2d Lohman 529], dealing Corpo Corpo, Di v. Di 195 Cal.2d judgment right to on an installment under with the execution provisions of 681 of the Code Civil Procedure. section “Although issuance It was stated in the Lohman case may requiring upon judgment execution a equitable proof that the installments upon grounds, be denied years6 prima a facie accrued five establishes have within judgment upon debtor to execution and the burden is cast denying order the writ” justifying facts an to establish Corpo “Thus, upon (29 150) at and in the Di ease that proof by plaintiff have accrued installments within years, upon burden defendant establish facts five was (33 201.) justifying recalling order writ.” Cal.2d at an unnecessary to сoncluded, however, that it is de We have defendant has met the burden referred termine whether in these cases. provided that
Prior 139 of the Civil Code section husband, granted for an offense of the a divorce is “Where may compel provide him to for the maintenance the court marriage, make such suitable children of the and to during her life or support, for her allowance to the wife regard may just, having period a shorter as court deem An order respectively. ...” the circumstances provide in 1955 to Civil Procedure section 681 was amended 6 Code of 5-year period. 10-year of a for a instead support payments under this section was enforceable by pursuant execution to section Code of Civil Procedure, provides, which an pay- “Whenever order for the money ment of a by sum of pursuant is made provisions of code, may by it be enforced execution ’’ the same judgment. manner were a
In however, section was amended, changes addition other proceeding, to this relevant provision “may added orders thereunder be enforced the court execution other order or orders such as in its discretion from trial time to time [the court] necessary.” deem provision Under this trial has court now discretion to determine each execution is case whether appropriate remedy for In enforcing present its order. *10 on permit case the court found sufficient evidence that to the issuance and enforcement of a writ of execution would dis professionally impair ability credit defendant his make and monthly payments discharge arrearages. the Accord the ingly, conditioning it did abuse its in not discretion the noncompliance issuance on with execution defendant’s discharge arrearages its order to the in installments. judgment To the extent that the modifies the interlocutory agreement settlement and final decree thereon In all other based it is reversed. respects judgment the side shall bear its affirmed. Each appeal. own costs
Gibson, Spence, McComb, J., C. J., J., concurred. CARTER, J.I concur in the reached the conclusion majority opinion. reasoning not, however, agree I do with the leading thereto.
I my Dexter, said in 42 dissent Dexter v. Cal.2d 46 P.2d 873], opportunity this court “. . had an . clarify stability given might the law so that agreements agreements settlement and main majority holdings tenanсe. three Not the in these do 881) v. Fox, (265 cases 42 Cal.2d ; v. 49 P.2d Dexter [Fox (265 Flynn Dexter, 873); Flynn, Cal.2d 36 (265 865)] law, Cal.2d not settle but add the my Flynn untold confusion.” I said in dissent the case (42 67) holding majority 55, 62, that the there designed wary trap catch both effective and un- wary attorneys honestly conscientiously who were trying protect interests, “absolutely their clients’ and that it was impossible attorneys will, to know whether this court years later, determine that there incorporation was an [of agreement judgment of divorce], or order one whether or not it was intended interlocutory at the time of the decree.”
The main, vicious, most error in this Fox, Flynn Dexter and cases is holding agreement parties may now be scrutinized to determine what the parties intended when was executed—whether monthly payments intended integral part as an of a settlement they really or whether in- periodic payments tended such to be and therefore subject to modification later that court or another court. Even one later determination as to the intent parties is not sufficient holdings under the in these cases— appellate if an court so desires decide that the payments intended the to be one or other, and so on ad infinitum.
In the ease consideration, under we majority have the reversing judgment of the trial court insofar itas modified provisions of “property agreement.” The trial had concluded that monthly payments pro vided subject therefore to modification. majority The here concludes that integral part were an
and therefore to modification. following majority opinion statemеnt from the way leads the to end litigation less between these others the same *11 “In situation: the absence of conflicting extrinsic evidence meaning as to the of the agreement, the trial court’s inter pretation binding of it is not on this (Fox court. Fox, ; Cal.2d Estate Platt, 21 881] 825].)” The error in permitting this point litigated relitigated be when the ob viously complete a final intended determination of their property rights leads this result: The trial court here monthly payments concluded that were Dis alimony; Appeal concluded payments Court that the trict were an integrated part of and this holding. By holding, court is now also so its the case is large and there must be now set at a retrial of the matter. trial, On the new may other forthcoming evidence be which will bearing have a what the they intended when entered intо the If new evidence is introduced which parties thought shows that they providing were payments and maintenance for the wife, may the trial again payments court decide that such to modification; the District Court Appeal might holding affirm court, of the trial highly probable might again this court conclude integrated such were an of a again large set the case at for a already by new trial. This one issue has passed upon been the courts of this state four times—once when the divorce again granted; by the trial applied court when the wife of execution; an order next the District Court Appeal, last, by but far from next, this court. This expensive litigation interminable and all from hold- stems ing majority question of a of this court that of what intended when entered into their relitigated is one of fаct which at some future time. judges I have been advised trial from all over the state Fox, find the rules set forth in the Dexter and Flynn extremely difficult, if impossible, apply cases presented the various situations to them in actions long exists, divorce. as this condition court So this will have endeavoring the added burden of to correct the honest errors type in this made trial courts case. This situation very easily remedied if could be would formulate guide lawyers judges definite understandable rules to superior courts of numerous this state. previous This court has not seen fit correct its errors general contrary, on the added confusion but, with holding in the case under consideration. It its at once glance signatures opinions from apparent at on the attorneys judges trial all of these eases that are not holdings Fox, confused as to the in the ones who are Flynn Here, Shenk, Dexter and eases. we have Mr. Justice Traynor’s opinions Fox, Dexter signed Mr. who Justice dissenting opinion from In Flynn cases, his herein. that, my passing, opinion, it should be mentioned Mr. correctly applies in his the rules set dissent Justice Shenk Flynn cases forth in Fox and that the trial court could interpretation of its aid take extrinsic evidence *12 agreement and that supported its conclusion based thereon was by the evidence and should appeal.* not be disturbed on Code,
Civil sections and all authorize con- tracts between husband and statutory wife. Under the law down, very would be simple lay matter for this court to understandable and applicable agree- workable rules of law ments for settlement, support and alimony, and separate maintenance divorce and maintenance cases. Such permit lawyers rules would properly clients, to advise their permit would seeking husbands and wives divorce who are honestly intelligently and endeavoring to make a division of their property, arrangements and and main- tenance, to do so arrangements without fear such would be changed by later a trial, appellate or an court. There appears to why me to be no sound reason contracts between parties such not, in should the absence fraud over- reaching, given stability be dignity same accorded to contracts persons entered into not between so related.
The rule of I law should like see effect in California type very simple easy of ease is application. Where the have entered into an for a division their property, or where one has give, receive, periodic payments the other to in lieu of a division of property, conjunction their or in awith division property, their or for support maintenance, or alimony, approved by so entered into the court as fair, just equitable any and not the result of fraud or overreaching, parties’ should be the sum total of rights liabilities and should be to modification expressly provided unless the have for a later modi- fication, subsequent modifying agreement or unless a is exe- cuted them. action,
In a divorce when the have entered into an agreement involving property rights, the court should surrounding inquire into the facts the execution thereоf to any whether there has been fraud or overreaching. ascertain inquire into The court should also the terms and fair, just to determine whether it is approves just equitable. fair, contract as When equitable and determines that there has been no fraud majority, ease it should he remembered that * In the Dexter while holding payments court could determine the that the trial character of the involved, objection sustaining trial court’s action in affirmed the de introduction of evidence on that fendant’s issue. or overreaching, the matter should forever concluded and bound the terms of their *13 simply, foregoing only proposed
Stated the rules mean parties agreement this: That the have entered into an which approved equitable the court has as fair and and not the overreaching; agreement rеsult fraud or that such should finality dignity be accorded the same as contracts entered strangers. into between prob-
If in California, the above rules were effect in the incorporation very simple lem of a one. In would also be my opinion incorporation agreement there no of an in a is agreement copied divorce decree unless that has been therein verba, in therein, haec or its substance is stated or unless a copy agreement physically the decree the attached being part of divorce and referred to as thereof. When agreement incorporation there has been an effective of the judgment, agreement merged the the therein remedy upon judgment effect is to make the one the rather by agreеment Incorpora- separate than action on the itself. absolutely parties’ no effect far tion should have so as the agreement agreement is a is concerned. contract govern. compliance If the decree its terms should orders incorporated which has been with the terms the should in the form of judgment, in the the result party seeking judg- remedy available to the to enforce the Superior Court, 20 (Plummer v. ment.
5].) apparent
It once the above rules had been is at ease, instant we would not have the chaos applied in the present. Here it is evident here and confusion property rights settlement of their parties intended final holding agreement was executed. The of the at the time the destroys the effectiveness majority here parties and leaves their solemnly into entered uncertainty and confusion. rights a state judgment and order. reverse I would therefore agree J., Dissenting.—I am unable to with that SHENK, alimony pay- holds that opinion which portion integrated wife were ments to the subject not to modification as therefore agreement and were Code. Civil provided section agreement should be construed as A dealing parties at arm’s agreement. Here any other length represented by and were preparation counsel in the They presumed are to mean what instrument and words have used are ordinary to be taken in legal meaning. Here both meanings are problem the same. The in each case is to ascertain the intention of language they have used. The “permanent set about to settle a lаsting” division “property rights” of their whether “separate community.” alimony payments Permanent do category fall within either general and as a rule must be dealt power with modify the court to them in accordance with the of section 139 of the Civil Code. Where there is a clear inten- tion integrate to waive them or to settle them as parcel of all marital and rights, the recognized. to so contract is Here, properly court, found no there was such intention. The repeatedly and design with obvious “alimony” used the word *14 in their ordinarily That word means allow- by ance made the wife her husband for her support after marriage by dissolution their divorce. It is used fre- quently in our incorporated statutes as in our official codes. example, specifically For it employed is sections 140 and 142 of the Civil Code. In our decisional law it has been repeatedly used ordinary its sense. It must be assumed that it was used in ordinary its throughout pro- sense ceeding. by It first parties used in their agreement, provides which that the pay defendant shall plaintiff to the per “alimony” $500 month as for her “support and main- provides tenance” that these shall continue “until the wife dies or remarries.” Then in her complaint for divorce the wife asked for an “alimony” award of prayed this same sum. She that settlement agreement approved made a of the decree and that pay order the defendant to per court her $500 month care, support agreed.” her maintenance and “as therein interlocutory approved The decree agreement incorporаted by it judgment reference in the pay plaintiff ordered the defendant that to the $500 per “care, month for her support maintenance and ... as agreement in said . . . until plaintiff dies or remarries. ...” “support” word used in section 139 of alimony. the Civil Code course means specifically The final decree of divorce states “wherein that 636 interlocutory
said any decree provision makes . . hereby . binding made on the [it] affected thereby as if herein set forth in full.” Those decrees have long since become final.
The use descriptive the court of the meaningful phrases term and “alimony,” “care, main- support” tenance and plaintiff “until dies or re- marries” disregarded should.not be and should be determina- support tive in findings of the and conclusions of the trial present court in the proceeding. But this court says, now as a law, matter of that
parties did not mean what said when used the “alimony” word agreement, and that the trial court did not mean what its decrees, divorce and that findings and present proceeding conclusions in the are without in the agreement record. If the was without ambiguity, as both contend, the trial had the power in the first from language instance declare its alone the parties, intention of the and its determination should be set aside unless it is unreasonable. A construction of agreement theory alone is However, reasonable. party each contends that unambiguous favor, his or her ambiguity. and this is one test of The fact themselves each meanings ascribe different used ambiguity. words indicates the existence of an (Chastain Belmont, 498]; Emp. Walters, Stab. Com. v. Cal.App.2d 554, California 17].)
Notwithstanding her contention is un ambiguous plaintiff in her favor the at hearing requested present proceeding the court to take extrinsic evi contracting parties dence to ascertain the intention alimony payments. doing In as to the so she was met prior in the pro the construction divorce *15 unmistakable ceedings alimony to the effect that was not integrated in compliance However with request the trial court took extrinsic evidence. This her right interpretation to do in aid of the it had the of the ambiguity present questionable. (Tuttle is or agreement when Flynn 419, Flynn, 421 P.2d Tuttle, ; v. v. 38 Cal.2d [240 587] Fox ; Fox, 42 Cal.2d 865] 881].) agreement, it terms Having the divorce before evidence, the trial extrinsic court found and decrees alimony concluded as such was not intendеd be in- to tegrated in the by pro- not affected waiving vision therein “all to future maintenance except . . . herein provided.” as otherwise The ex- ception could have alimony reference which provided.” “otherwise In my opinion fully the record sup- ports findings and the conclusion of the trial court that alimony payments were modifiable.
I judgment. would affirm the J., Dissenting.—Husband
SCHAUER, and wife are as free competent persons as other to contract (Civ. with each other. Code, 158, 159.) why they There is no reason cannot enter §§ into pro- which includes a vision for alimony, such, as which shall be subject, within agreed limits, by example, control the court. For agree could to a maximum or limit to a minimum limit or to both maximum and minimum or limits, in- could clude a cost-of-living sliding scale, the exact amount con- by tributions each cаse to be fixed the court if the agree. They failed to provide security guar- could also antee maximum or agree could that the court might complete order alimony upon showing termination casualty. occurrence of some
A by contract made competent parties, and valid under the law of contracts, mysterious does not for some reason be- subject come disregard merely to alteration in or of its terms because contracting parties are or were husband wife. by But when the provides payment contract its terms for the ordinary meaning suggests of the word the amount subject of alimony shall remain control of primary meaning expressly unless that negated Changing limited the contract. the amount of payments obviously is not an alteration the contract where provides “alimony” prohibit contract and does not changes. such
Here, I cannot hold that as matter law the contract is not given interpretation the trial court. That contract was not truth made a of the decree of divorce. majority opinion ap- states that “The decree proved incorporated reference expressly pay per $500 ordered defendant ” agreement.’ month ‘as in said (Italics added.) I pointed have heretofore out But,
(Flynn Flynn (1954), 865]), v. 61-62 simple fact is that part cannot be made a judgment incorporated judg- of a unless it is in truth judgment copied judgment ment so that when the including judgment, book the whole of the necessarily part it, for which is a set forth word word. “ judgment any purpose ‘In no case is a effectual until (Codе 664.) judgment To Proc., entered.’ Civ. enter a § ‘judgment copy means to it in the book’ that it so becomes permanent public (see Proc., 668), Code record Civ. § Any portion he who content. so that reads know its judgment judgment would be not entered book any If error omitted purpose. ineffectual the clerk any judgment been filed, to enter of a which had corrected; error of the officer could be but he ministerial truly duty judgment entered is performed has his rendered, judgment has become judgment as and that any person neither court nor other court final, then language judgment.” of that power to add words has (Flynn supra.) Flynn, incorporated
Inasmuch as the was light in the decree, the trial court’s determination payment of $500 the order entire record upheld. alimony, should nature of an award judgment. I would affirm the