Opinion
Page __
__ Cal.App.2d __ 233 P.2d 920 HIXSON v. HIXSON. Civ. 18488. California Court of Appeals, Second District, Second Division July 18, 1951.Hearing Granted Sept. 13, 1951.
Subsequent opinion 240 P.2d 586.
Rehearing Denied Aug. 6, 1951.
[233 P.2d 921] Stanley N. Gleis, Beverly Hills, for appellant.
Paul R. Hutchinson, Los Angeles, for respondent.
MOORE, Presiding Justice.
The question for decision is whether the superior court may modify a decree of divorce by reducing the amount of the payments to the wife on the ground that two of the three children voluntarily returned to the home of their father, the amounts of such payments having been fixed by the property settlement agreement and such provision having been incorporated in the decree.
The interlocutory judgment was filed March 11, 1949. It approved the formal written 'property settlement agreement' of the parties made 18 days previously which agreement was 'marked exhibit A and made a part hereof by reference to said exhibit is hereby approved in full, and each of the parties is ordered to perform each, every and all of the provisions on her or his part provided to be performed.'
The agreement contained the following: 'It is the desire and understanding of both of the parties hereto that this Agreement shall be a final determination of all of their present or future obligations, one towards the other, insofar as community or separate property rights are concerned, or of the obligation to support or maintain the other, or to be in any wise obligated financially by reason of the said marriage relationship or by reason of any contracts either of the parties hereto may now be under obligation to meet, except as set forth herein or of any demand for support, maintenance, or alimony from the beginning of time or forever.' The decree provided, pursuant to the agreement, for payment to the wife, appellant herein, of $7,200 per year for a period of four years in equal monthly installments of $600, and for lesser sums in the subsequent years.
In November, 1950, pursuant to an order to show cause served upon appellant, the court below heard evidence upon the issue raised by the new controversy and found that the interlocutory decree contemplated that the children would reside with plaintiff during their minority; but since September 23, 1950, Robert and Sim, ages 18 and 14, have voluntarily resided with defendant and intend to continue to do so; the reasonable sum necessary for their support is $100 a month for each. Thereupon, it was ordered that plaintiff pay to defendant for the support of each child while residing with him '$100 per month per child and * * * that said payments may be set-off by defendant against any payments due plaintiff by defendant pursuant to the decree of March 11, 1949.'
Such a modification was error. The parties had made a solemn and permanent settlement of their mutual interests and community estate. By their agreement respondent was to make specified payments per month for four years and the court had approved by its decree the bargain they [233 P.2d 922] had made. That the children changed their minds was no cause for disturbing the judgment. Their change of sentiment could surely have no more potency than a change of desire on the part of respondent who was a party to the agreement. If his wishes could not alter the provisions of an agreement he had helped to create and to which he had pledged his faith, how may it be said that the whims, desires or needs of the two children effect a rescission? By the March contract the war and causes for war had been erased and a new status was created. After that document was signed and sealed the economy of the two households offered neither cause for dispute nor occasion for judicial pronouncements. Their community estate had by the agreement been 'converted into separate property' to which the court gave its approval. By implication the writing promised there would be no change in its terms for 12 years when the court may, if not satisfied, modify the arrangement than in force whereby the husband is to pay the wife 'not exceeding 10% of his net earnings.'
In Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697, 699, it was held that 'the trial court is without jurisdiction to modify an unqualified disposition of property rights made in an interlocutory decree' which is 'res judicata with respect to all issues determined.' In Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1, 2, a property settlement was effected by a writing after the divorce action was filed. They owned some property and had one child. They desired 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'. Their contract contained many customary provisions found in property settlements. Some six years later the wife sought a modification of the divorce decree so that she might take the child to Arizona to attend school and the husband asked in return 'because of his changed financial circumstances' that the $250 monthly allowance be reduced to $150. He appealed the order denying his motion. The court held, 21 Cal.2d at page 840, 136 P.2d at page 5, that (1) a husband and wife may contract with each other with respect to their property rights and the support of each other; (2) a divorce decree adjusting their property rights is not subject to modification regardless of whether or not it is based upon the agreement of the parties; (3) without regard to the effect upon the power to modify an agreement for alimony incorporated in the decree, a property settlement agreement for periodical payments to be made to the wife, when approved by the court in its decree, 'will not be subsequently modified, except by the consent of the parties.'
It is a doctrine familiar to all lawyers that there must be an end to litigation. If every order fixing the amount of support money for the wife that is entered in a divorce action should be reviewed on the occasion of every new desire on the part of either litigant, the increase of proceedings in chancery would soon upset the doctrine requiring a change in conditions as a prerequisite to a change of the judgment. These parties reached a definite, amicable adjustment of their differences. Their agreement was of their making. It was their decision and it concluded the question of custody and property division. Although nothing thereafter transpired by reason of any violation by appellant of the court's order, yet respondent takes the situation in hand, revamps the regimen established by his agreement and the court's decree, welcomes the boys to his home and asks the court to reduce the payments he was under contract to make. Such methods cannot be sanctioned if we maintain the integrity and dominance of the law.
That part of the order appealed from is reversed with directions to discharge the order to show cause and to dismiss the proceeding against appellant.
WILSON, J., concurs.
McCOMB, J., dissents.
Rehearing denied; McCOMB, J., dissenting.