Opinion
Page __
__ Cal.App.2d __262 P.2d 49FINNEGANv.FINNEGAN.Civ. 19149.California Court of Appeals, Second District, Third DivisionOct. 26, 1953Hearing Granted Dec. 17, 1953.
[262 P.2d 50] Jerry Giesler and Harold C. Holland, Beverly Hills, for appellant.
A. A. Goldstone, Los Angeles, for respondent.
SHINN, Presiding Justice.
Plaintiff was awarded a decree of separate maintenance August 9, 1944, by which defendant was ordered to pay, pursuant to a property settlement agreement, a certain sum monthly for the support of herself and the minor son of the parties. In September of 1950 plaintiff applied for an increase of support for herself and the son. December 7, 1950, an order was made for an increase of $75 for support of the son and denying an increase of support for plaintiff. $300 as attorneys' fees and $100 court costs was awarded plaintiff's attorneys for services in that proceeding. Plaintiff appealed from that portion of the order which denied her an increased allowance. She applied for an allowance for attorneys' fees for the prosecution of her appeal and for costs of appeal. Defendant was ordered to pay direct to plaintiff's counsel $750 as attorneys' fees and to plaintiff $250 as costs of appeal. Defendant appealed from this order.
Plaintiff had been granted a decree of separate maintenance May 20, 1943, by which she was awarded all the community property and $100 per month for the support of the son. On defendant's appeal the judgment was affirmed as to those provisions and reversed insofar as it ordered a sale of certain property by a receiver. Finnegan v. Finnegan, 64 Cal.App.2d 109, 148 P.2d 37. April 14, 1944, the parties entered into a property settlement agreement. The judgment of August 9, 1944, recited that the agreement '* * * is intended to and is in complete settlement of all the mutual rights and liabilities of the parties hereto which were litigated herein and, as appears by the stipulation attached to this judgment, is accepted by each of said parties as full and complete satisfaction of the rights and relief to which they were entitled under the provisions of the judgment heretofore made and entered,' etc. The agreement of the parties was attached to the judgment which provided that the same was in all respects approved and incorporated in the decree; the parties were directed to make the conveyances therein provided for and defendant was ordered to make the payments to plaintiff 'for alimony and support therein provided for' and the parties were ordered to faithfully perform and carry out the terms of the agreement. It was ordered that defendant pay to plaintiff 'the sums for alimony and support of herself and minor son as provided in Paragraph Five of said Agreement, said payments to be at the rate of Two Hundred Seventy Dollars ($270.00) per month commencing August 5th, 1944, until said monthly sums are reduced as provided in said Agreement.'
The agreement recited: '* * * said parties have agreed upon a mutual property settlement pertaining to all the property of every kind, nature and description, belonging to them, or either of them, and to be a complete and final settlement of their mutual rights and claims of every kind [262 P.2d 51] and nature whatsoever and in the manner hereinafter recited.' The husband received certain United States and Canadian Letters Patent and License Agreements with certain licensees, certain motion picture equipment and office furniture, all accounts and notes receivable, articles of personal adornment, all stocks and bonds and money on deposit or in which he had an interest. The wife received $5,400 in cash 'as and for alimony and support money' from the date of separation to the date of the agreement. She also received all interest in certain insurance policies and the residue of $3,500 then on deposit after the payment of certain debts, expenses and attorneys' fees. The husband agreed not to dispose of the Letters Patent except by a bona fide sale and it was agreed that upon a sale being made plaintiff would receive an additional amount equal to 50 per cent of the sale price, provided that when and if she received $25,000 the sum of $170 per month of the alimony referred to was to absolutely cease, and if less than $25,000 was received, the sum of $170 per month was to be decreased by the proportion the sum received by her through the sale should bear to the sum of $25,000. It was also provided that when the son became of age, expired, married or became self-supporting, the sum of $270 should be reduced to $170, which sum defendant agreed to pay during the natural life or until remarriage of the wife, subject to the provision for the sale of the Letters Patent. The husband agreed to secure the monthly payments by an assignment of certain License Agreements. The agreement contained comprehensive and explicit provisions that it was a full, complete and final settlement of all property rights and claims, present and future, of each party against the other and that neither should make or attempt to make any other or further claim of any kind whatsoever upon the other. Each waived the right to assert or claim any interest in the estate of the other as surviving husband or wife and each accepted the consideration receivable under the agreement in satisfaction of any and all claims with respect to property or maintenance which either party might have or claim against the other then or thereafter. It also provided as follows: 'The settlement herein made is in complete payment of any and all attorneys' fees and court costs incurred by Second Party and she assumes and agrees to pay any and all attorneys' fees and court costs incurred in the prosecution by her in the Superior Court of Los Angeles County in Superior Court case No. D-224,875.'
The questions on the appeal are the following: (1) Was the obligation for plaintiff's support and maintenance an integral part of the property settlement agreement rather than an obligation imposed by the decree, and hence not subject to modification by the court? (2) Was it a valid agreement? (3) Did the agreement operate as a waiver of plaintiff's right to receive an allowance for attorneys' fees and costs upon her appeal?
It is not questioned that the court denied plaintiff's application for an increased allowance upon the ground that defendant's obligation of support in a specific amount was assumed by him and was accepted by plaintiff as an inseparabel part of the property settlement agreement. The question is whether the court was in error in so construing the agreement. In our opinion the court did not err.
The agreement provided for a division of all the property of the parties and, in the contingency that the Letters Patent should not be sold for $50,000, it provided for the support and maintenance of the wife until she should die or remarry. It was in consideration of the promise of support as well as the other property rights which she had received that the wife surrendered all interest in the property which the husband received from her under the agreement. The agreement was approved by the court and its validity was not thereafter open to question. The husband had complied with the agreement in all particulars. Nothing had occurred which would have justified either of the parties in withdrawing from or repudiating the agreement.
It is, of course, settled beyond question that as between divorced parties such an agreement withdraws from the court the [262 P.2d 52] power to either increase or decrease the amount agreed to be paid for the support and maintenance of a wife. Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1; Adams v. Adams, 29 Cal.2d 621, 625, 177 P.2d 265. The fact that the decree which approved the property settlement agreement also ordered the husband to make the agreed payments for the support and maintenance of the wife does not render the rule inapplicable. Puckett v. Puckett, supra.
It is true, as plaintiff says, that where the contract provisions for support are separable from those which make a division of property the court is not bound to follow them in awarding support money. In contending for application of this rule plaintiff merely says: 'Here paragraph 5 relating to support for wife and child is certainly severable from the provisions of paragraphs 2 and 3 relating to a division of the community property,' and further that when the provisions for support and maintenance can be separated from the rest of the agreement and are incorporated into a decree they may be subsequently modified under appropriate conditions. But the provisions for support are not severable from the remainder of the agreement. To construe them as severable would violate elementary principles of the interpretation of agreements. The consideration on each side was entire. That which moved to the husband was the property he received in the settlement, the agreement of the wife to accept a specified sum under given conditions, and a waiver upon her part to demand any more in the way of support. The consideration to the wife was the property she received and the promise of support by the husband. The parties could not have more clearly stated their intentions then they were stated in the agreement. As long as the agreement was valid and in force neither party could keep what he or she had received under it and evade his or her correlative obligations. Adams v. Adams, supra, 29 Cal.2d 621, 177 P.2d 265.
We conclude from a consideration of the agreement alone that the husband's obligation of support was an inseparable part of the consideration for the property settlement agreement, and not merely one imposed by the decree. Times without number similar agreements have been so construed. It may be noted that upon the hearing which culminated in the order in question evidence was received by the court consisting of testimony given by plaintiff, defendant and one Henry Serlin. There is no record of this testimony and it is admitted that it was not reported. Plaintiff's brief contains statements of testimony which it is asserted was given upon the hearing. Defendant quite properly requests that these statements be disregarded, as they must be. He also says that it should be presumed that the evidence was such as to furnish support for the implied finding that the obligation of support in the agreed amount was an integral part of the property settlement agreement, citing McMahon v. Merrill, 112 Cal.App.2d 454, 246 P.2d 73. It is not necessary to rely upon this rule as support for that finding, or conclusion. The agreement, itself, is sufficient.
Plaintiff's next contention is that the court always has jurisdiction to modify a provision for support and maintenance in a decree of separate maintenance even where the award is based upon an obligation assumed in a property settlement agreement. It is argued that considerations of public policy forbid a waiver or release by the wife of the husband's duty of support so long as the marital status exists for the reason that such waiver may result in the wife's becomding a public charge. For these propositions she cites Monroe v. Superior Court, 28 Cal.2d 427, 170 P.2d 473; Weedon v. Weedon, 92 Cal.App.2d 367, 207 P.2d 78; Verdier v. Verdier, 36 Cal.2d 241, 223 P.2d 214; and Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15. Nothing will be found in these cases which directly or in principle lends support to her contention. In none of them was there a provision for support in a property settlement agreement that had been approved by the court. Her citations from other jurisdictions are equally inapplicable.
It may not be doubted that the possibility that a wife might become an object of public charity would be an important matter for consideration when he court was called [262 P.2d 53] upon to approve such an agreement in either a divorce or separate maintenance action, but as we have said, the agreement here involved was approved by the court upon plaintiff's application. Under plaintiff's theory any agreement for support, even if an inseparable part of a division of property, would be subject to rejection by the court so long as the marital status existed; however fair and equitable it might be, and however ample the provision for the wife, it would not be binding upon the parties or upon the court. This, we think, would be an unjustified curtailment of the right of husband and wife to freely contract with each other. The question whether the parties should be held bound by such an agreement is one for decision upon the facts of the particular case which have a bearing upon its fairness and the circumstances under which it was entered into. That question was answered when the court approved the agreement. If it was a fair agreement, fairly entered into, the parties had a right to adjust their lives in reliance upon its being fully performed. Such agreements are usually entered into while the marital relationship exists. It is a novel proposition that the parties are not bound by provisions for support while they remain married, although they must abide by them in the event of a divorce. It has no support in reason or authority.
The facts of the present case well illustrate the wisdom of the rules we have discussed. Before Mrs. Finnegan entered into the agreement she had been awarded by the former decree all the community property and $100 per month for the support of the son. Those provisions of the decree had been affirmed. She transferred the patent rights, contracts and accounts for a consideration which included the right to receive support. If that support could be increased under her theory it could also be reduced by the court upon a proper showing of changed circumstances without restoring to her the property with which she had parted. Untold mischief and the disruption of settled financial arrangements of many separated spouses would result is such agreements could be set at naught.
Plaintiff's application for attorneys' fees and costs on her appeal was in violation of her agreement to make no further demand of defendant. The validity of the agreement was not in question and the court had decided that it was without jurisdiction to grant any demand for support in addition to that provided in the agreement. Plaintiff's waiver of all claims that might arise in the future should have been given effect. There was no question as to the meaning of the waiver, nor is there now any contention that its terms were not broad enough to embrace future claims for attorneys' fees and costs. The decree which approved the property settlement and ordered the parties to comply with their agreement was an adjudication which barred the assertion of any and all claims of either party which would be in conflict with the waivers expressed in the agreement. The waiver as to attorneys' fees and costs was just as valid as was the waiver of the right to an increase of support money. The court was without jurisdiction to allow attorneys' fees and costs on plaintiff's appeal. Viera v. Viera, 107 Cal.App.2d 181, 236 P.2d 632; McClure v. McClure, 4 Cal.2d 356, 49 P.2d 584, 100 A.L.R. 1257.
Plaintiff urges that because defendant paid $300 attorneys' fees and $100 costs allowed on the hearing he is estopped to object to the allowance of fees and costs on the appeal. The hearing resulted in an increase of the allowance for the support of the son and it must be presumed that the fees and costs were allowed for services in obtaining that award, or, at least, that defendant so understood it. There was no waiver of the right to object to the allowance of fees and costs on plaintiff's appeal and no estoppel.
On plaintiff's appeal the order is affirmed as to the denial of a modification with respect to the support of plaintiff; on defendant's appeal the order is reversed as to the allowance of attorneys' fees and costs on plaintiff's appeal from order denying increased support; no costs of appeal to either party.
PARKER WOOD and VALLÉE, JJ.,