Messenger v. Messenger , 46 Cal. 2d 619 ( 1956 )

TRAYNOR, J.

Plaintiff and defendant were married in 1936 and separated in 1950. On January 3, 1951, they executed a property settlement agreement. Thereafter plaintiff filed a complaint for divorce, and on January 8, 1951, an interlocutory decree was granted to her on the ground of extreme cruelty. The decree approved and incorporated by reference the provisions of the agreement and expressly ordered defendant to pay $500 per month “as agreed in said property settlement agreement. ’ ’ The final decree was entered on January 16, 1952.

In December, 1953, plaintiff applied for an order of execution for claimed arrearages of $6,700 plus interest and secured an order to show cause why defendant should not be held in contempt for failing to make the overdue payments. Defendant then secured an order to show cause why the payments provided for in the decree should not be reduced to $300 per month. The three matters were heard together, and the trial court entered judgment reducing the monthly payments and finding that defendant was not in contempt for failure to make the overdue payments. The court also concluded that an execution should not be issued against the defendant, on the grounds that he “has no properties or monies against which such execution could be successfully levied, that the only manner in which such execution could be served would be by placing a constable in charge of the daily receipts of the defendant; and, as the defendant is a professional man, this Court finds that such an action would result in considerable discredit to the defendant; and the court further believes that, if such action were taken, that the earning ability of the defendant [as a physician and surgeon] would be reduced to such a degree that it would materially affect the ability of the defendant to pay to the plaintiff the reduced alimony as set by this Court. ’ ’ The court ordered that the property settlement agreement be amended to provide for the payment of $375 per month, and income tax on an income of $4,500 per year instead of $500 per month and income tax on an income of $6,000 per year. It found that the amount due plaintiff from defendant to March 10, 1954, was $5,668 and ordered defendant to pay $800 on or before that date and $50 per month in addition to the reduced alimony payments to be applied on the balance due. The issuance of execution was suspended so long as defendant made these payments, but in the event of default, an execution was to issue forthwith.

Plaintiff appeals. She contends that the provisions for monthly payments and income tax payments were an integral and inseparable part of the property settlement agreement of the parties and are therefore not subject to modification.

In their agreement the parties provided:

“Whereas, the parties hereto are husband and wife, and that said parties hereto have agreed to divide all property and property rights between them; and

“Whereas, said parties do not make any arrangement or arrangements as to any divorce proceedings by either of the parties to this agreement, leaving the determination of such action to the Court, hut make and enter into this agreement for the purpose of fixing and adjusting their personal and property rights; and

“Whereas, the [husband] has represented that he has fully disclosed to the [wife] all of the community property of every kind and nature, and that the same is being and has been divided as between the parties under the terms and conditions of this agreement as hereinafter set forth.

“Now Therefore, for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature, whether separate or community property, they hereby mutually covenant and agree, each with the other as follows, to wit:”

Paragraphs 1 and 2 then provided for a division of the property, and in the present proceeding the trial court found that plaintiff received property worth $32,850 and that defendant received property worth $31,375.

Paragraph 3 provided “That the husband agrees to pay to the wife for her care, maintenance and support, the sum of Five Hundred ($500.00) Dollars per month, payable monthly in advance, commencing on January 3rd, 1951, receipt of which first month’s alimony is hereby acknowledged, such obligation to pay to continue until the wife dies or remarries. ’ ’

Paragraph 15 provided “That the husband agrees that from date hereof he will pay to the wife a sufficient amount over and above the Five Hundred ($500.00) Dollars per month alimony, herein agreed to be paid, to pay the income tax, if any, to be paid by the wife on said alimony payment. . . .”

The agreement also provided that “It is further understood and agreed that the wife waives, relinquishes, abandons, and releases all of her right, title and interest in and to any and all property which is hereinbefore agreed shall be set apart to and become the property of the husband, and to any and all property of every nature which said husband now has or that he may hereafter acquire or own, and all right to future maintenance and support from or by the said husband, except as herein otherwise expressly provided, and hereby waives, relinquishes and releases all right to inherit any property whatsoever which said husband now owns or possesses or which he may hereafter own or possess, or of which he may die seized or possessed, and all property which is hereinbefore set apart to Mm shall he and remain forever as between the parties hereto the separate property of the husband.” A similar provision related to the husband, except that his waiver of all right to future support and maintenance was not qualified by the clause, “except - as herein otherwise expressly provided.”

Plaintiff’s complaint referred to the $500 per month payments as alimony and prayed that the court approve the property settlement agreement, make it part of the decree, and order defendant to pay $500 per month “for the care, maintenance and support of the plaintiff, as therein agreed. ’ ’ The interlocutory decree approved the agreement, made it part of the decree by reference, and expressly ordered defendant to pay $500 per month “for the care, maintenance and support of the plaintiff, as agreed in said property settlement agreement.” The final decree provided that “It is further ordered and decreed that wherein said interlocutory decree makes any provision for alimony” said provision “be and the same is hereby made binding on the parties affected thereby the same as if herein set forth in full, and that wherein said interlocutory decree relates to the property of the parties hereto, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto.

“It Is Further Ordered Adjudged and Decreed, that the community property of the parties hereto is ordered divided, in accordance with the property settlement agreement approved in the Interlocutory Decree entered herein and the order for support payments as are provided for therein are hereby ratified and confirmed.”

Since the final decree merely confirms the provisions of the interlocutory decree and the property settlement agreement, and since the interlocutory decree ordered that the payments be made “as agreed in said property settlement agreement,” we must examine the agreement to determine whether the provisions for monthly payments and income tax payments are separable from the provisions that divide the property, or whether they are an integral and inseparable part of the division of property and therefore an inseparable part of the consideration for the property settlement. If they fall into the latter category they cannot now be modified. (Dexter v. Dexter, 42 Cal.2d 36, 40-41 [265 P.2d 873]; Adams v. Adams, 29 Cal.2d 621, 625 [177 P.2d 265].)

In support of his contention that the provisions fall within the former category defendant stresses the fact that the monthly payments for the wife’s support are expressly referred to in paragraphs 1(h),¹ 3,² and 15³ as alimony and have one of the principal characteristics of alimony in that they terminate if the wife dies or remarries. Similar contentions were rejected in Dexter v. Dexter, 42 Cal.2d 36, 41 [265 P.2d 873]⁴ and in Fox v. Fox, 42 Cal.2d 49, 52-53 [265 P.2d 881],⁵ where it was pointed out that the labels adopted by the parties are not conclusive and that it is not controlling that the monthly payments for support have some of the indicia of alimony.

In this case as in Fox v. Fox, supra, Dexter v. Dexter, supra, Flynn v. Flynn, 42 Cal.2d 55, 60-61 [265 P.2d 865], and Finnegan v. Finnegan, 42 Cal.2d 762, 765 [269 P.2d 873], the parties have made the provision for support an integral part of their property settlement agreement. Not only did they “enter into this agreement for the purpose of fixing and adjusting their personal and property rights” but they made the provisions for support “an inseparable part of the consideration for the property settlement” (Dexter v. Dexter, supra, at pp. 41-42) by expressly agreeing that the support and maintenance provided in paragraph 3, like the division of property provided in paragraphs 1 and 2, was “for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature, whether separate or community property. ...”

Moreover, as in Fox v. Fox, supra, at page 52, the wife waived “all right to future maintenance and support from or by the said husband, except as herein otherwise provided,” i.e., in paragraph 3. Her express promise not to seek alimony except as provided in the agreement could not “be abrogated without changing the property settlement agreement of the parties.” {Ibid.) Similarly, since this waiver was part of the consideration for the husband’s agreement to make the support payments, he likewise could not seek a modification thereof without changing the property settlement agreement of the parties. It is clear, therefore, that if the parties meant the maintenance and support provisions to be alimony separable from a division of the property they would not have included this waiver (see Helvern v. Helvern, 139 Cal.App.2d 819, 829-830 [294 P.2d 482]), for an order allowing alimony is subject to revision at any time. (Hough v. Hough, 26 Cal.2d 605, 612 [160 P.2d 15].)

In the absence of conflicting extrinsic evidence as to the meaning of the agreement, the trial court’s interpretation of it 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].) The evidence offered and introduced in this case was concerned primarily with defendant’s ability to pay, his various expenditures, his financial arrangements with his father, and with the money and other property the husband and wife received under the agreement. The only extrinsic evidence offered that had any bearing on the meaning of the property settlement agreement was that showing the value of the property received by the parties. Proof that defendant received the greater part of the community property would be some indication that the support provisions were in lieu of part of plaintiff’s share of the community property. There are two reasons, however, why the trial court’s finding that defendant did not receive the greater part of the community property does not support its conclusion that the support provisions were not part of the consideration for the division of the property and were therefore subject to modification.

(1.) That finding was based on a reevaluation of the accounts receivable assigned to defendant under the agreement. In the agreement the parties estimated the value of the accounts at $15,000. The trial court estimated their value at $5,000. It is obvious that for the purpose of determining the meaning of the agreement, the value that is material is the value estimated by the parties in their agreement, not the value estimated by the court three years later.

(2.) Even if the evidence had showed that when the parties made their agreement, they understood that plaintiff would receive property worth $32,850 and defendant would receive property worth $31,375, it would not support the conclusion that the payments were subject to modification. The agreement was for a “permanent and lasting division” of all their rights in separate as well as community property. As stated in Dexter v. Dexter, (supra, at p. 43) “ [A]t the time a property settlement is made, the parties may be uncertain as to which of their property is community rather than separate, and they will ordinarily not know how the court in the divorce action will find the facts or how it would, in the absence of an acceptable agreement, exercise its discretion in dividing the property and awarding alimony. The amicable adjustment of these doubtful questions with respect to the property and support and maintenance rights of the parties may alone supply sufficient consideration to support their entire agreement. [Citation.] Thus in the present case, the parties recited that they desired to settle their property and support and maintenance rights ‘by friendly agreement, instead of resorting to court for said purpose.’ Moreover, since plaintiff secured her divorce on the ground of extreme cruelty, had the parties not settled their rights by agreement, the court could in its discretion have awarded plaintiff all of the community property and less alimony than she received under her agreement. In such case, however, the alimony would be subject to reduction in the event of changed circumstances. Plaintiff was entitled to agree instead to an equal division of the community property in exchange for support and maintenance payments that could not be reduced. Accordingly, the fact that the community property was divided equally has no bearing on the validity of the provision of the agreement whereby both parties waived all rights to support and maintenance other than as provided therein. [Citations.] ” In the present case the very fact that the finding of the respective values was based on conflicting evidence indicates that the parties were in doubt as to the value of their property and that they meant what they said when they provided that both the division of their property and the monthly payments were “for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature. ...” Moreover, in the absence of the agreement the court could have awarded plaintiff all of the community property and less alimony, and just as in the Dexter case, she was entitled to agree instead to a substantially equal division of the community property in exchange for support and maintenance payments that could not be reduced.

When as in this case the parties have clearly expressed their “purpose of fixing and adjusting their personal and property rights,” have provided that the provision for alimony is “for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature,” and the wife has waived “all right to future maintenance and support . . . , except as herein otherwise expressly provided,” the conclusion is inescapable that they have made the provisions for support and maintenance an integral and inseparable part of their property settlement agreement. With such conclusive evidence of integration, the provisions for support and maintenance or alimony would be subject to modification only if the parties expressly so provided. (See Flynn v. Flynn, supra, 42 Cal.2d 55, 61, and cases cited.) The court may not, however, “insert what has been omitted” (Code Civ. Proc., § 1858) and thereby abrogate the clearly expressed agreement of the parties.

Plaintiff contends that the trial court erred in failing to find defendant in contempt of court and in conditionally suspending the issuance of a writ of execution. There was evidence that defendant had been twice married after his divorce from plaintiff, that he had no assets other than the income from his medical practice upon which an execution could be levied, and that he had suffered a partial stroke necessitating loss of time from his practice. On the basis of this evidence and evidence of defendant’s income and expenditures the trial court was justified in finding that defendant, “while in arrears, is not in contempt of Court,” and that “the financial obligations of said defendant have been of such a nature so as to have prevented the payment of the sum of $500.00 each and every month.”

With respect to the question of execution, both parties rely on Lohman v. Lohman, 29 Cal.2d 144 [173 P.2d 657], and Di Corpo v. Di Corpo, 33 Cal.2d 195 [200 P.2d 529], dealing with the right to execution on an installment judgment under the provisions of section 681 of the Code of Civil Procedure. It was stated in the Lohman case that “Although issuance of execution upon a judgment requiring monthly payments may be denied upon equitable grounds, proof that the installments have accrued within five years⁶ establishes a prima facie right to execution and the burden is cast upon the judgment debtor to establish facts justifying an order denying the writ” (29 Cal.2d at 150) and in the Di Corpo ease that “Thus, upon proof by plaintiff that installments have accrued within five years, the burden was upon defendant to establish facts justifying an order recalling the writ.” (33 Cal.2d at 201.) We have concluded, however, that it is unnecessary to determine whether defendant has met the burden referred to in these cases.

Prior to 1951, section 139 of the Civil Code provided that “Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life or for a shorter period as the court may deem just, having regard to the circumstances of the parties respectively. ...” An order for support payments under this section was enforceable by execution pursuant to section 1007 of the Code of Civil Procedure, which provides, “Whenever an order for the payment of a sum of money is made by a court pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment. ’ ’

In 1951, however, section 139 was amended, and in addition to other changes not relevant to this proceeding, a provision was added that orders thereunder “may be enforced by the court by execution or by such other order or orders as in its discretion [the trial court] may from time to time deem necessary.” Under this provision the trial court now has discretion to determine in each case whether execution is an appropriate remedy for enforcing its order. In the present case the court found on sufficient evidence that to permit the issuance and enforcement of a writ of execution would discredit defendant professionally and impair his ability to make the monthly payments and discharge the arrearages. Accordingly, it did not abuse its discretion in conditioning the issuance of execution on defendant’s noncompliance with its order to discharge the arrearages in installments.

To the extent that the judgment modifies the provisions of the property settlement agreement and the interlocutory and final decree based thereon it is reversed. In all other respects the judgment is affirmed. Each side shall bear its own costs on this appeal.

Gibson, C. J., Spence, J., and McComb, J., concurred.

1 "It is understood and agreed as to this policy [life insurance] that if, due to financial reverses or other reasons beyond the control of the husband, it is necessary to borrow money thereon for the purpose of paying the alimony hereinafter agreed to be paid by the husband, but for no other purpose, the husband may borrow on said policy for the purpose of paying said alimony, but for no other purpose. ...” (Italics added.)

2 ‘‘That the husband agrees to pay to the wife for her care, maintenance and support, the sum of Five Hundred (§500.00) Dollars per month, payable monthly in advance, commencing on January 3rd, 1951, receipt of which first month’s alimony is hereby acknowledged, such obligation to pay to continue until the wife dies or remarries.” (Italics added.)

3 '‘That the husband agrees that from date hereof he will pay to the wife a sufficient amount over and above the Five Hundred (§500.00) Dollars per month alimony, herein agreed to be paid, to pay the income tax, if any, to be paid by the wife on said alimony payment, ...” (Italics added.)

4 "Plaintiff contends, however, that since the monthly payments were to terminate on her death or remarriage and were described as alimony in the prayer of her complaint, they should be so treated. She points out that if they were intended as a division of property it would have been more reasonable for the agreement to provide that they should continue until a given amount had been paid. These considerations would be more persuasive if the issue presented was whether, on the one hand, the monthy payments were solely part of a division of the community property, or, on the other hand, solely alimony. When, as in this case, however, the parties have made the provision for support and maintenance an integral part of their property settlement agreement, the monthly payments will ordinarily have a dual character. To the extent that they are designed to discharge the obligation of support and maintenance they will ordinarily reflect the characteristics of that obligation and thus have the indicia of alimony. [Citations.] On the other hand, to the extent that they represent a division of the community property itself, or constitute an inseparable part of the consideration for the property settlement, they are not alimony, and accordingly cannot be modified without changing the terms of the property settlement agreement of the parties.”

5 ‘‘Plaintiff contends, however, that since the payments were labeled alimony, were to cease on her remarriage, and were subject to modification in the event of a reduction of defendant’s pension, there is evidence to support the trial court’s implied finding that they were solely alimony subject to modification. . . . The labels adopted by the parties are not conclusive, since the agreement must be considered as a whole. [Citations.] Moreover, as pointed out in the Dexter case, to the extent the monthly payments are designed to discharge the obligation of support and maintenance, they will ordinarily have some of the indicia of alimony. ’ ’

6 Code of Civil Procedure section 681 was amended in 1955 to provide for a 10-year instead of a 5-year period.