Opinion
Page __
__ Cal.App.2d __253 P.2d 999DEXTERv.DEXTER.Civ. 19284.California Court of Appeals, Second District, First DivisionMarch 2, 1953Rehearing Denied March 23, 1953.
Hearing Granted April 30, 1953.
[253 P.2d 1000] Irving M. Walker, John L. Martin and Mark Mullin, Los Angeles, for plaintiff-appellant.
Macfarlane, Schaefer & Haun and William Gamble, Los Angeles, for defendant-respondent.
DRAPEAU, Justice.
Plaintiff, Mary Dexter, and defendant, Raymond C. Dexter, were married February 24, 1922. They lived together as husband and wife until March 11, 1944. In that year the wife brought this action for divorce. The husband made no contest, his default was entered, and interlocutory and final judgments followed for the wife. No appeal has been taken from either judgment.
Prior to the divorce the parties entered into what they called an agreement. Whether or not it was a property settlement agreement in the technical sense hereinafter discussed is one of the disputed questions in this case.
In the interlocutory judgment the Superior Court approved the agreement, and ordered defendant to comply with its terms. The court further ordered:
'Pursuant to the terms of the said agreement, defendant is ordered to pay the plaintiff monthly the sum of $150.00, one-half on the first day of the month, and one-half on the 15th day of the month, commencing June 1, 1944; provided, however, that when the son, Norman Greenaway Dexter, leaves school and goes to work, or when he goes into the military forces of the United States, the said monthly award shall be reduced to the sum of $100.00 per month.'
February 11, 1952, the former wife secured an order from the Superior Court, directing her former husband to show cause why he should not pay her more money for her support. He appeared and presented the agreement in bar of that proceeding.
The Superior Court ordered: 'defendant's objection to the jurisdiction of the court to hear any evidence on the order to show cause re modification is sustained.'
Plaintiff appeals from this order.
The court later on ordered defendant to pay plaintiff $400 counsel fees and costs on appeal.
Defendant appeals from this order.
Both appeals have been consolidated, and, by stipulation, will be considered and disposed of together.
The agreement recites that the parties are husband and wife; that there are two children of the marriage, a daughter 21 years of age, and a son 16 years of age; that the parties are separated and have lived apart for some time; that they have made a full and frank disclosure to each other of all property owned by them respectively, and that each has full knowledge of the extent, value, and type of property owned by them; that they desire to effect a division of their community property, and to provide for the support and maintenance of the wife 'by friendly agreement, instead of resorting to court for said purpose.'
The husband conveys to the wife the family dwelling house, with all the personal property in it except a few items, and a Plymouth station wagon.
The husband agrees: (a) to pay the wife $150 per month 'for her support and maintenance and the support of their adult daughter and minor son', (b) with $25 more per month for the daughter's expenses in college for the next two years, (c) when the minor son leaves school and goes to work, or into military service, then the monthly payments to the wife shall be decreased to $100 per month, and (d) payments to the wife shall cease upon her death or remarriage.
The agreement also contains a mutual release of and by each party, 'from any and all right of support, care and maintenance, as the husband or wife, respectively, of the other party'; a recital as to the intent of [253 P.2d 1001] the parties: 'It is the intention of the parties hereto to make a final settlement herein of all rights of support, care and maintenance, one against the other, and to release the other party respectively from all rights of such support, care and maintenance other than as herein provided;' and a waiver: 'In any action for divorce or maintenance hereafter brought by either party, second party (the wife) waives any right to alimony, temporary or permanent, other than such amount as is provided for hereinabove for her support.'
If the agreement were the sole determinative factor in this case, it would appear that the husband conveyed to the wife everything he had, in consideration of her release of him of more than $100 per month for her support and maintenance.
If that be true, this case would come within the rules stated in Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265, 268; and squarely within the third category defined in the Adams case: '* * * contracts in which the wife waives all support and maintenance, or all support and maintenance except as provided in the agreement, in consideration of receiving a more favorable division of the community property.'
As to that category our Supreme Court says: 'The court cannot add a provision for alimony to such contracts without changing basically the agreement of the parties as to the division of their property.' 29 Cal.2d at page 625, 177 P.2d at page 268.
Later on in the opinion we read: 'The contract before the trial court in the present case was clearly one that attempted to settle the property rights of the parties. It contained a waiver of all other payments in consideration of her receipt of the major portion of the community property, and that waiver was inseparable from the remainder of the division of property. A waiver under such conditions is not void per se.' 29 Cal.2d at page 626, 177 P.2d at page 268.
But there is another and additional factor in this case which must be considered. The wife filed an affidavit in support of her order to show cause in which she averred that when the agreement was executed, 'our property' in addition to that listed in the agreement included a joint bank account of $15,000 and a late model town car; also that the real property conveyed to her by the agreement was of the fair market value of $15,000.
Assuming the truth of the facts in the affidavit, and taking those facts together with the facts in the agreement, it would appear that the parties made an equal division of their community property, plus the agreement for support and maintenance.
Under that assumption this case would fall within the first category in Adams v. Adams, supra. The husband's covenant for the wife's support and maintenance was severable from the agreement, and subject to the principles set forth in Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15.
The Hough case holds that if provisions for support and maintenance of the wife can be separated from the rest of an agreement between husband and wife, and are incorporated into and made an operative part of an interlocutory decree of divorce, then such provisions are merged into and become a part of the decree. They may then be enforced in contempt proceedings, and may subsequently be modified under appropriate circumstances.
In this case it was the duty of the trial court to hear the evidence, and to find whether or not the provisions for the wife's support and maintenance were severable from the agreement and were made a part of the judgment. Hough v. Hough, supra, 26 Cal.2d 606, 160 P.2d 15; Adams v. Adams, supra, 29 Cal.2d 621, 177 P.2d 265. And see 19 West Cal.Digest, Divorce, k245, p. 314. And also, see 'Legal Problems of Divorce Property Settlements in California', 39 Cal.Law Rev. 250.
Having come to the conclusion that the issues in this case should be tried, no extended comment need be made as to the contention argued in the briefs that the plaintiff is limited by the prayer of her complaint to the amounts stated in the agreement. If the provisions for support of the wife were severable from the agreement and were part of the judgment, they may be modified in the discretion of the court as [253 P.2d 1002] justice may require. Hough v. Hough, supra.
The prayer in plaintiff's complaint is:
'3. For the approval of said agreement attached to the complaint, and for an order directing the defendant to comply with the terms thereof.
'4. For alimony as set forth and agreed upon in said agreement attached to the complaint.'
Nothing in the prayer may be construed to limit the power of the court to modify the order for support, if it be determined to be a part of the judgment not limited by agreement. See Kroupa v. Kroupa, 91 Cal.App.2d 647, 205 P.2d 683.
The order sustaining defendant's objections to the jurisdiction of the court to hear any evidence on the order to show cause is reversed.
The order allowing attorneys' fees and costs on appeal is reversed; without prejudice, however, to such an award being made if the trial court finds that the order for support and maintenance in the interlocutory judgment is severable from the agreement of the parties.
WHITE, P. J., and DORAN, J., concur.