Opinion
4-29-1958
Helen M. KELLEY, Plaintiff and Respondent, v. Sidney H. KELLEY, Defendant and Appellant. Civ. 22460.
R. F. Neuman and Allan M. Carson, Los Angeles, for appellant. Pacht, Ross, Warne & Bernhard, Leo Altshuler, Harvey M. Grossman, Los Angeles, for respondent.
Helen M. KELLEY, Plaintiff and Respondent,
v.
Sidney H. KELLEY, Defendant and Appellant.
Hearing Granted June 25, 1958. *
R. F. Neuman and Allan M. Carson, Los Angeles, for appellant.
Pacht, Ross, Warne & Bernhard, Leo Altshuler, Harvey M. Grossman, Los Angeles, for respondent.
PATROSSO, Justice pro tem.
This is an appeal by defendant from an order dismissing an order to show cause issued upon his application for modification of an order for support of plaintiff. The sole question presented is whether the trial court's implied finding that the provisions in the divorce decree for the wife's support was part of an integral property settlement agreement and hence not subject to modification, is supported by the evidence.
After the plaintiff had instituted an action for divorce against defendant, the parties attempted to effect a reconciliation. During this period the parties entered into a written property settlement agreement wherein they undertook to make provisions for a division of certain of their community property in the agreement specifically described. By the terms of this agreement, plaintiff (hereinafter referred to as wife) was given an automobile registered in her name and $33,500 in cash, and all other property described in the agreement was awarded to the husband as his separate property. In addition, it was provided that semiannually, commencing February 1, 1953 'until permanent alimony is awarded' an accounting of the husband's earnings for personal services should be had 'and the amount thereof that has been saved and accumulated as a result of not having been expended * * * for living and other expenses,' should be equally divided between them. In addition, the husband agreed to continue to pay the wife the sum of $650 per month temporary alimony which he was then under order of the court to pay with the proviso that any amounts so paid to the wife while the parties were living together were to be 'credited toward the division of future community earnings.'
Following the execution of this agreement the wife filed a supplemental complaint for divorce. Therein she alleged that subsequent to the filing of her original complaint the parties had attempted a reconciliation but that it had failed and the parties had again separated. She further alleged that during the period that the parties were living together they executed the property settlement agreement hereinabove referred to, a copy of which was attached to the supplemental complaint; that the execution of said agreement was procured by fraud, threats and undue influence of the husband and she prayed that the agreement be set aside and declared void.
When the cause was called for trial, Judge Kincaid, to whose department it had been transferred for hearing, suggested to the parties and their counsel, that they endeavor to settle as many of their differences as possible. After some negotiation the parties reached an agreement, of which they thereupon advised the court, to the effect that the wife should retain the sum of $33,500 which she received under the property settlement agreement; that the agreement should be approved except that there should be reserved for the court's determination the question as to whether the husband's interest in Coast Western Advertising Agency was community property, and that in order to complete the settlement of community property between the parties, the defendant would pay to the plaintiff the additional sum of $4,500; that the wife should have the right to occupy the residence of the parties which was owned by them in joint tenancy until it was sold, at which time the net proceeds would be divided between them, and that the husband should pay to the wife as alimony the sum of $500 per month. With respect to the agreement as to alimony the transcript of the proceedings discloses the following: 'Mr. Nichols: (Counsel for defendant-husband) Now, in addition, if your Honor pleases, I think counsel has omitted, inasmuch as the property settlement agreement of December 3rd, 1952 did not encompass the matter of alimony, it is a part of this stipulation that the amount of alimony payable by the defendant to the plaintiff shall be the sum of $500 per month until the plaintiff dies or remarries, or until further order of the Court in the premises; and incident to that is the further stipulation, your Honor, that that amount is to be fixed without regard to future modification on the part of either party. 'The Court: Well, the provision, until the further order of the court of course takes care of that. '(Discussion off the record) 'The Court: Alimony to be ordered at the rate of $500 per month until the plaintiff either dies or remarries, payable at the rate of $250 on the first and 15th days of each month, beginning April 15, 1953, and at the rate of $500 a month beginning August 1st, 1953, and payable thereafter on the first day of each month.'
Thereafter, further proceedings were had with respect to the issue as to Coast Western Advertising Agency and the matter of the attorney's fee to be allowed to wife's counsel, following which the court announced its decision that Coast Western Advertising Agency was the separate property of the husband in accordance with the terms of an antenuptial agreement executed between the parties and fixed the amount of attorney's fee payable by the husband. Following this, the issue as to plaintiff's right to a divorce was not contested by defendant.
Findings having been waived, an interlocutory decree was entered. This decree was prepared by counsel for the husband and in the main reflected the stipulations of the parties as hereinabove set forth. With respect to the matter of the support payments, however, it was not in accord therewith in that it was therein provided that 'Such payments shall continue to be made by defendant to plaintiff until plaintiff dies or remarries or until further order of this Court or upon the demise of defendant. And in consonance with the stipulation made in open Court upon the subject, it is further ordered that plaintiff is and shall be chargeable with the waiver, release and relinquishment in favor of defendant of any and all right to seek or obtain any increase in the amount of such payments during any of said times.' [Emphasis added.]
Upon the hearing of defendant's application for modification, which resulted in the order appealed from, evidence was received consisting of the testimony of Judge Kincaid as to his recollection of the proceedings had before him upon the trial of the divorce action as well as testimony of the then counsel for the plaintiff as to the negotiations which had resulted in the settlement reached and his understanding with respect thereto. In view of the conclusion which we have reached, however, we do not find it necessary to set forth here the details of this evidence.
Appellant contends (1) that in view of the language of the interlocutory decree, the only conclusion to be derived therefrom is that the support payments therein provided for constitute alimony and not an integral part of the settlement of the parties' property rights; (2) that the court erred in receiving extrinsic evidence as to the understanding and agreement of the parties other than the written property settlement agreement; and (3) that, in any event, such extrinsic evidence lends no support to the trial court's conclusion that the support payments were an inseparable part of the agreement of the parties to divide their property.
We find it unnecessary to consider appellant's first contention in view of our conclusion that the trial court properly received and considered evidence with respect to the agreement of the parties as reflected not only by the written property settlement agreement, but the oral stipulation of the parties upon the trial. The writing does not purport to be a complete agreement with respect to the matter of support and maintenance or the division of their community property, other than that therein specifically described. The matters left undetermined thereby were resolved when the parties appeared for trial and then reached an agreement with respect thereto as reflected by the stipulations in open court. Only by considering the written agreement in connection with such oral stipulations could the court undertake to determine what the entire agreement of the parties was. And that it was authorized to do so may not be gainsaid. In Codorniz v. Codorniz, 1950, 34 Cal.2d 811, 215 P.2d 32, 35, it was assumed without question that upon the hearing of an application for the modification of support payments contained in a divorce decree, the judge who had presided at the trial of the action could properly take into consideration the facts which induced him to make the order in the first instance in determining whether or not such payments were subject to modification. And this, in a case where the provisions for support in the decree of divorce was not based upon a property settlement agreement. The court there said: 'It follows from the rules just stated that the trial court likewise has jurisdiction, in a proceeding such as this, to determine whether payments ordered under a decree concededly not based (at least not directly or wholly) upon a property settlement agreement were intended to be in lieu of property rights and not subject to modification, or were meant wholly or partially as alimony and child support provisions and were therefore subject to modification, and that that court's findings based upon 'ample evidence to support' such findings are likewise binding upon an appellate court.'
Appellant argues that in admitting extrinsic evidence as to the agreement of the parties except as reflected by the written agreement, the trial court in effect permitted the respondent to collaterally attack the decree in violation of the rule announced in Gosnell v. Webb, 60 Cal.App.2d 1, 139 P.2d 985. Such is not the case.
In Tuttle v. Tuttle, 1952, 38 Cal.2d 419, 240 P.2d 587, 588, the divorce decree, which made no mention of a property settlement agreement, by its terms divided the community property between the parties and in addition provided that the plaintiff husband should pay to the defendant wife 'as and for her support and maintenance' certain specified monthly payments over a period of years. Subsequently, the wife made a motion for an increase in the amount of the monthly payments based upon an alleged change of conditions. In support of the motion, she filed an affidavit in which she made certain statements of fact. The husband answered by a counteraffidavit, setting forth at lenght the discussions between then court and counsel upon the trial of the divorce action. He alleged that the provision of the decree for the payment of stated amounts for a limited period, was not an award of alimony but an integral part of a property settlement agreement referred to in these discussions. The wife, by a further affidavit, denied the making or existence of any property settlement agreement. The trial court denied the wife's motion on the ground that the provisions in the decree for monthly payments 'was not permanent alimony, but was an unqualified disposition of property rights resulting in full satisfaction of any and all claims by the * * * wife for her support and maintenance.' Upon the wife's appeal from the order, she contended, as does appellant here, that the husband's claim that the provision for support was based upon a property settlement agreement constituted a collateral attack upon the decree. In rejecting this contention the court said (38 Cal.2d at page 421, 240 P.2d at page 589): 'The decisive question presented by Lillie's motion is whether the payments awarded by the decree were alimony, or part of a settlement of property rights. In such a proceeding, 'the trial court has jurisdiction to determine whether the decree was based upon a property settlement agreement with payments provided as a phase of property adjustment and therefore not subject to modification or was based upon alimony or support allowance covenants and therefore subject to modification.' Codorniz v. Codorniz, 34 Cal.2d 811, 814, 215 P.2d 32, 34; Hough v. Hough, 26 Cal.2d 605, 615, 160 P.2d 15; Puckett v. Puckett, 21 Cal.2d 833, 841, 136 P.2d 1. A finding upon this issue, if supported by sufficient evidence, is binding upon an appellate court. Codorniz v. Codorniz, supra, 34 Cal.2d at pages 814-815, 215 P.2d 32; Hough v. Hough, supra, 26 Cal.2d at pages 615-616, 160 P.2d 15; Wallace v. Wallace, 136 Cal.App. 488, 493, 29 P.2d 314; Atlass v. Atlass, 112 Cal.App. 514, 517, 297 P. 53. 'Lillie argues that this rule is inapplicable where the decree, upon its face, clearly is one for alimony. However, the provision requiring the payment of stated amounts for a limited period is one of eight numbered paragraphs which specify in detail how 'the hereinafter designated property which is found to be community property * * * [is to be] divided and apportioned'. The use of the words 'support and maintenance' does not necessarily mean that the amount ordered to be paid in monthly installments was an award of alimony and not a part of the settlement of the property rights of the parties. Puckett v. Puckett, supra, 21 Cal.2d at page 842, 136 P.2d 1. Under these circumstances, upon a motion to modify the terms of the decree, it was the duty of the trial court to determine whether or not alimony had been awarded. 'There is ample evidence to support the trial court's finding in the order denying modification that the provision for payments to Lillie was a disposition of property rights and not alimony. The decree, therefore, is not subject to modification. Puckett v. Puckett, supra, 21 Cal.2d at page 840, 136 P.2d 1; Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697; Dupont v. Dupont, 4 Cal.2d 227, 228, 48 P.2d 677; Ettlinger v. Ettlinger, 3 Cal.2d 172, 178, 44 P.2d 540. 'In resisting the motion, Emmett is not making a collateral attack upon the decree. He is relying upon the decree and the record in the original proceeding which clarifies its provisions. He does not, as did the defendant in Gosnell v. Webb, 60 Cal.App.2d 1, 4, 139 P.2d 985, 987, upon which Lillie relies, 'attack the decree by evidence that it is not what it appears to be, or that it is not in accordance with the agreement of the parties.''
And in Flynn v. Flynn, 1954, 42 Cal.2d 55, 60, 265 P.2d 865, 867: '* * * We are concerned only with the provisions of the agreement providing for monthly payments in litigation between the parties themselves. Under these circumstances, the necessity of referring to an extrinsic document presents no insuperable barrier to giving effect to the decree, as is demonstrated by the many cases where the court in modification proceedings as taken extrinsic evidence to determine whether the provision for monthly payments was one for alimony subject to modification or part of a property settlement not subject to modification. See, e. g., Tuttle v. Tuttle, 38 Cal.2d 419, 420-422, 240 P.2d 587; Codorniz v. Codorniz, 34 Cal.2d 811, 815, 215 P.2d 32. Thus, in cases in which it is difficult or impossible accurately to determine from the permanent records of the court alone the intended character of the payments involved, courts do not hesitate to consider all of the admissible extrinsic evidence correctly to interpret their decrees.'
In he aspect with which we are here concerned, there is no difference, in legal effect, between a divorce decree providing for monthly payments for support and maintenance which is silent as to the court's power to modify such provision and one which, as here, provides that the payments shall continue until further order of the court. In either case, upon the face of the decree, the court would possess the power to modify the same. Where, however, the question thereafter arises as to whether the payments ordered to be made are alimony subject to modification, the court is not confined to a consideration of the terms of the decree but, as the foregoing authorities declare, may receive extrinsic evidence designed to establish that the award for support was in fact predicated upon an agreement of the parties settling their property rights. And, as pointed out in Kohl v. Kohl, 1944, 66 Cal.App.2d 535, 542, 152 P.2d 494, 497, if, from the evidence as to the agreement of the parties the court is warranted in concluding that 'the award was made as a part of the adjustment of the property rights of the parties and in accordance with their agreement 'no reason appears why the judgment, when it became final, did not also become unchangeable to the same extent as a final judgment in any other action.' Parker v. Parker, 1921, 55 Cal.App. 458, 460, 203 P. 420, 421. Hence, as held in the Parker case, the inclusion in the interlocutory decree of the above quoted language [that the support payments should continue 'until further order of the court' and 'until modified by the court'] does not have the effect of continuing the jurisdiction of the court so as to permit the modification of the decrees in the respect here sought.'
In view of the foregoing, little remains of appellant's contention that, conceding the admissibility of the extrinsic evidence with respect to the agreement of the parties, the trial court nonetheless erred in concluding that the monthly payments were not alimony subject to modification. From a consideration of the evidence of the agreement of the parties the trial court was warranted in finding that they thereby intended to settle both the division of their property and their rights and duties with respect to support and maintenance, the wife waiving any right to support except to the extent and in the amount specified in the agreement, and from this the trial court was likewise warranted in concluding that the provision for monthly payments represented either a division of the community property or constituted an inseparable part of the consideration for the agreement. As said in Dexter v. Dexter, 1954, 42 Cal.2d 36, 41, 265 P.2d 873, 876: '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. See, Puckett v. Puckett, 21 Cal.2d 833, 838, 136 P.2d 1; Ettlinger v. Ettlinger, 3 Cal.2d 172, 174, 44 P.2d 540; Kohl v. Kohl, 66 Cal.App.2d 535, 537, 152 P.2d 494. 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.'
Appellant lays much stress upon the fact that the decree makes separate provisions for support and for the division of the community property; that the order for support makes no reference to the settlement agreement and expressly provides that the monthly payments are to continue until the further order of the court. These facts considered singly or collectively, however, do not compel the conclusion, as he contends, that the monthly payments are alimony subject to future modification. Helvern v. Helvern, 1956, 139 Cal.App.2d 819, 827-828, 294 P.2d 482; Fox v. Fox, 1954, 42 Cal.2d 49, 53, 265 P.2d 881; Kohl v. Kohl, 1944, 66 Cal.App.2d 535, 542, 152 P.2d 494; Dexter v. Dexter, supra.
If it were to be conceded that such provisions would have warranted the trial court in reaching a different conclusion, its finding to the contrary being supported by the evidence is conclusive upon appeal. Codorniz v. Codorniz, supra.
The order appealed from is affirmed.
SHINN, P. J., concurs.
VALLEE, Justice.
I concur in the judgment. I am unable to understand why a decree of divorce should be treated differently from any other final judgment. In Hamilton v. Hamilton, 94 Cal.App.2d 293, 210 P.2d 750, this court held that extrinsic evidence is not admissible for the purpose of varying the terms of an unambiguous final interlocutory decree. There is no uncertainty or ambiguity in the decree at bar. It specifically provides that the payments to be made by defendant to plaintiff for her support and maintenance 'shall continue to be made by defendant to plaintiff until plaintiff dies or remarries or until further order of this court.' (Emphasis added.) If there was fraud in causing the underscored language to be inserted in the decree, it was intrinsic fraud which will not justify departure from the terms of the decree. Burch v. Hibernia Bank, 146 Cal.App.2d 422, 431-435, 304 P.2d 212. Thus on the face of the decree it appears that the court retained jurisdiction to modify it with respect to the wife's support. However, since this court in Kohl v. Kohl, 66 Cal.App.2d 535, 152 P.2d 494, expressly held that the above quoted language does not have the effect of continuing the jurisdiction of the court so as to permit modification of the decree with respect to the wife's support where that award was made in the decree as an integral part of division of the property of the parties--in other words, that the quoted language means nothing--and since Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881, indicates that is the rule, I am compelled to concur in the judgment. --------------- * Dismissed as moot Aug. 14, 1958.