YNEZ H. PUCKETT, Respondent, v. T. LYELL PUCKETT, Appellant.
L. A. No. 17839
In Bank
Apr. 12, 1943
Respondents’ petition for a rehearing was denied May 6, 1943.
21 Cal.2d 833
As the complaint states a cause of action, the denial of leave to amend was an abuse of discretion, even if the special demurrers were well taken. (Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 718, 719 [128 P.2d 522, 141 A.L.R. 1358].) And since the action was commenced subsequent to the effective date of section 472c of the Code of Civil Procedure, a special request by the appellant for leave to amend was unnecessary. (Wennerholm v. Stanford Univ. Sch. of Med., supra, p. 719.) However, upon a reconsideration of the special demurrers, the trial court may require the clarification of any uncertainties or ambiguities. (Wennerholm v. Stanford Univ. Sch. of Med., supra, p. 720; Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 104 [114 P.2d 1].)
The judgment is reversed.
Gibson, C. J., Curtis, J., Traynor, J., and Griffin, J. pro tem., concurred.
Respondents’ petition for a rehearing was denied May 6, 1943. Curtis, J., Carter, J., and Schauer, J., voted for a rehearing.
Leonard Comegys for Respondent.
CARTER, J.—On March 23, 1933, plaintiff, Ynez H. Puckett, was awarded an interlocutory decree of divorce from her husband, T. Lyell Puckett, on the ground of extreme cruelty, and on March 26, 1934, a final decree was entered. They have one minor child.
After the commencement of the divorce action, and on March 16, 1933, an instrument designated as a property settlement agreement was entered into by the parties. It was therein provided that the parties were husband and wife and had a minor child; that they had acquired and owned property; that they desire to “effect a complete settlement of the property rights between them, including the right of maintenance and support for the wife, and of the minor child of the parties hereto, attorneys’ fees and costs in any action which now pends, or which may hereafter pend between said parties by reason of the marital relation, and it is . . . agreed . . . , except as in this instrument provided, that neither the wife nor the husband shall have any . . . interest . . . in any property, . . . whether the same be community and/or separate property and which is either now owned, or which may hereafter be acquired, by either of the parties hereto, and which heretofore has been, or may hereafter be, acquired, and without reference as to whether said property might be community property or separate property of either party hereto, and that the wife shall have no community, dower or other . . . interest in . . . any such property, or in . . . any property of the husband by reason of or in any way arising out of the marriage relation between the parties hereto, or because of any rights or provisions of law arising out of or affecting the same except as in this instrument provided, whether the parties hereto continue to live together as husband and wife, or separately, or are divorced; that the husband shall have no . . . interest . . . of any kind whatsoever by virtue of the marriage relation of the parties, or any rights or provisions of law arising out of or affecting the same, in . . . any property now owned by the wife as her separate estate or hereafter acquired by her in any manner or capacity whatsoever ex
“From and out of the said sum of . . . ($250.00) . . . per month reserved to be paid as aforesaid the wife promises and agrees that she will, without further demand upon the husband, support, educate and maintain the said minor child during her minority.
“It is . . . agreed that the said sum of . . . ($250.00) . . .
The interlocutory decree gave custody of the child to plaintiff and also stated: “It further appearing to the court that the plaintiff and defendant, . . . entered into an agreement in writing which has been offered and received in evidence as Plaintiff‘s Exhibit ‘A‘, and which agreement bears date March 16, 1933, and which agreement is for the purpose of settling the property rights between the parties;
“Now, therefore, it is further ordered, adjudged and decreed that said agreement of March 16, 1933, be and the same is hereby approved as to form and contents.
“It is further ordered, adjudged and decreed that in view of the said agreement of March 16, 1933, that the defendant . . . shall pay to the plaintiff as and for the support and maintenance of the plaintiff and the minor child of said parties, . . . the sum of . . . ($250.00) . . . per month, the first payment to be made on or before April 1, 1933, and subsequent payments to be made thereafter at the rate of . . . ($250.00) . . . per month on the 1st day of each and every succeeding month commencing with May 1, 1933, provided that in the event the plaintiff should remarry any person other than the defendant, . . . then and in that event all payment reserved herein to be made by the defendant, . . . for the support and maintenance of the plaintiff shall immediately cease and determine, and thereafter the said defendant, . . . shall pay to the plaintiff for the support and maintenance of the minor child . . . such sums as shall be mutually agreed upon by the plaintiff and defendant, or if the said plaintiff and defendant cannot mutually agree upon a sum to be paid for the support and maintenance of the said minor child, then and in that event the defendant, . . . shall pay to the plaintiff as and for the support and maintenance of the minor child, . . . such sum of money as shall be fixed, determined and ordered by this, or any, court of competent jurisdiction.” The final decree of divorce provided that wherein the interlocutory decree makes any provision for alimony or custody of children or property of the parties it is made final and binding on the parties.
On August 1, 1940, plaintiff noticed a motion to modify the divorce decree to permit her to take the minor child to Arizona to attend the state university there. Defendant opposed the motion and requested that because of his changed financial circumstances the $250 monthly allowance be re
Certain principles are well established with reference to whether a trial court will modify a divorce decree in certain particulars, otherwise than by a motion under
With certain exceptions (see Long v. Long, 17 Cal.2d 409 [110 P.2d 383]; Tolle v. Superior Court, 10 Cal.2d 95 [73 P.2d 607]), a provision for the payment of alimony to the wife in a divorce decree, granted to the wife for the offense of the husband, may be modified by the court under appropriate circumstances. (
In the instant case the agreement was introduced in evidence and was approved by the court. Some of its terms were embodied in the divorce decree. The requirement for monthly payments was expressly based upon the agreement
The essential issue to be determined is whether or not the agreement was a property settlement agreement, and the monthly payments ordered by the decree in effect and essence, a phase of the property settlement rather than merely alimony. It would be better practice to have that determination clearly and concisely made by the trial court when it renders the decree of divorce. Considerable confusion and uncertainty could be avoided in that fashion. The court could examine the agreement, the circumstances under which it was made, and the nature and value of the property as related to its division and the amount of the periodic payments giving consideration to the statutory rules on the subject. An analysis of the agreement and the divorce decrees here in question in the light of the principles applicable thereto, leads to the conclusion that the monthly payments ordered were an inseparable part of a property settlement agreement, and therefore they may not be modified. It recites that the parties desire to effect a complete settlement of their property rights, including the support of the wife and child; that except as provided in the agreement, neither shall have any claim against the other in respect to property rights; that the provisions in the agreement (and some of them divide the property) shall be in full satisfaction of all rights
Defendant complains that his offer to introduce evidence establishing that the agreement and decree were for alimony and not a property settlement was improperly denied. Assuming that this evidence would have been admissible, the record before us does not indicate error. Not having before us a transcript of the proceedings at the hearing on the motion, we are not advised of the nature of the evidence offered. From all that appears, the evidence went solely to the question of defendant‘s changed financial condition rather than the nature of the payments ordered. His motion was made upon that ground, and the court in its order denying it stated: “The plaintiff objected to the introduction of any evidence in support of the defendant‘s said motion to modify the Interlocutory and Final Judgments of Divorce, said objection being made upon the ground that the defendant‘s said motion for modification being made upon the ground that the financial condition of the defendant had materially changed since the entry of said judgments, and that said defendant was not earning sufficient money and was not able to pay the required amounts, and that said sum of . . . ($250.00) . . . per month, or any other sum in excess of . . . ($150.00) . . . , was not necessary for the support and maintenance of the plaintiff and the minor child. . . .”
In the order denying defendant‘s motion, attorney‘s fees incurred in resisting the motion were awarded to plaintiff. Defendant objects to the allowance claiming that it cannot be made for services already performed. Suffice it to say that defendant gave notice of his motion on August 15, 1940. On September 4, 1940, prior to the hearing on defendant‘s motion, plaintiff noticed a motion to be heard on September 5, 1940, requesting an allowance of counsel fees. Hearings were had on September 3, 5, 6 and 10, 1940. The order was made on September 26, 1940. (See Baker v. Baker, 64 Cal.App. 778 [222 P. 863].)
The order from which the appeal is taken is affirmed.
Gibson, C. J., Shenk, J., Curtis, J., and Peters, J., pro tem, concurred.
EDMONDS, J., Dissenting.—As I read the contract which is the basis of the controversy between the parties one cannot say with certainty that Mr. Puckett agreed to pay his wife $250 per month as part of the consideration for the division of property in the manner agreed upon, or in fulfillment of his marital obligation of support. He contends that the decrees of divorce are subject to modification because, on account of business reverses, he is no longer able to pay that amount and if “is not necessary for the support and maintenance of said plaintiff and minor child . . .” And
Mrs. Puckett, by way of affidavit, pleaded facts relevant upon this issue. Regardless of Mr. Puckett‘s income, she said, he “does have sufficient capital assets, or the ability to obtain same, so as to be well able to continue said payment,” and she referred to the allegations of the divorce complaint fixing $200,000 as the value of the community property. The allegations concerning the character and value of the property held by the appellant were denied by him, the affidavit continued, and he asserted that his net worth was $99,500. As a result of negotiations, she entered into a property settlement which was approved as to form and contents by the interlocutory decree and she “further agreed not to further question or make the subject of litigation, the question of fact as to the nature and extent of the property held by the defendant, or as to whether it was the community property of the parties or the separate property of the defendant, nor to further question the facts as to the income of the defendant.” Her agreement with Mr. Puckett for monthly payments of $250 “was part of the property settlement effected between the parties” and the provision of the decrees incorporating into them the requirement of the agreement “was to that extent an element and a part of the determination by the court of the property rights between the parties, and was not intended, and did not constitute an award of alimony.”
The court refused to consider the application for modification upon the merits, for when the appellant called his first witness, an objection to the introduction of any evidence upon that issue was sustained. The ground assigned for this ruling was that as the provisions of the divorce decrees had been made “pursuant to and as a part of a property settlement agreement entered into between plaintiff and defendant prior to the entry of said judgments, or either of them, that this court was without power and jurisdiction to modify said judgments or either of them, as requested by the defendant.” However, Mrs. Puckett‘s motion was granted and the appellant ordered to pay her $100 for costs and attorney‘s fees.
The language of the contract does not compel the conclusion that it was made in accordance with a property settlement agreement and not in fulfillment of any marital or parental obligation. True, it refers to the desire of the parties
Under these circumstances, it seems to me, the question concerning the character of the contract which was the basis of the divorce decrees is one of fact, and the appellant is entitled to a hearing for the purpose of presenting evidence upon that issue. At that time Mrs. Puckett should be allowed to offer evidence supporting her position. If the court decides that the agreement to pay $250 per month was made to discharge the appellant‘s legal obligation to support his wife and their child, it should receive evidence as to his ability to continue making payments of that amount. For in granting a divorce, the court may compel a husband to make suitable provision for the support of his wife and the maintenance of the minor children, “having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects.” (
As to that part of the order relating to attorney‘s fees, the motion of the appellant and that of Mrs. Puckett were heard on five days including September 10th, when they were submitted for decision. No ruling was made until September 26th, when Mr. Puckett was ordered to pay the respondent $100. At that time, Mrs. Puckett‘s attorney had rendered the services mentioned in the notice of motion and the court had no authority to make an order concerning payment of them. (Dixon v. Dixon, 216 Cal. 443 [14 P.2d 498]; Smith v. Superior Court, 89 Cal.App. 177 [264 P. 573].)
Under these circumstances, in my opinion, the order should be reversed with directions to the trial court to hear and determine the appellant‘s motion in accordance with the rules which have been stated.
Traynor, J., concurred.
