Opinion
3-28-1955
Bertha J. MESSENGER, Plaintiff and Appellant, v. Thomas T. MESSENGER, Defendant and Respondent. Civ. 4938.
Sidney J. W. Sharp, Herbert M. Braden and Lawrence W. Clawson, Hanford, for appellant. Daniel M. Fadenrecht, Hanford, for respondent.
Bertha J. MESSENGER, Plaintiff and Appellant,
v.
Thomas T. MESSENGER, Defendant and Respondent.
March 28, 1955.
Rehearing Denied April 22, 1955.
Hearing Granted May 25, 1955. *
Sidney J. W. Sharp, Herbert M. Braden and Lawrence W. Clawson, Hanford, for appellant.
Daniel M. Fadenrecht, Hanford, for respondent.
MUSSELL, Justice.
Plaintiff and defendant were married on September 11, 1936, and separated on or about November 14, 1950. On January 3, 1951, they entered into a property settlement agreement for the 'purpose of fixing and adjusting their personal and property rights.' The agreement provides that 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, the parties agree in part as follows: The husband transfers to the wife certain real property and household furniture; he agrees to pay her $18,350 in cash, receipt of which is acknowledged. She is to have miscellaneous personal belongings and one 1948 Chrysler automobile. He agrees to keep a government insurance policy in good standing and that he will not change the beneficiary in a life insurance policy which he has or borrow thereon except for the purpose of paying the alimony specified in the agreement. The husband further agrees to pay concurrently with the signing of the agreement the sum of $1,000 attorney's fees and costs. The wife agrees that the husband shall have $18,350 then in his possession, together with miscellaneous personal belongings, office furniture, one 1949 Chrysler automobile and United States government bonds not exceeding $1,500 in value and as to these bonds, the husband agrees not to change payees thereon or cash said bonds except at maturity, it being the understanding that if he should die before the maturity date of any of said bonds, the proceeds therefrom shall be the separate property of the wife. Accounts receivable of approximately $15,000 are transferred to the husband, together with $2,650 due and owing from one Dorothy E. Cowels. The agreement in paragraph three thereof provides 'That the husband agrees to pay 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 3, 1951, receipt of which first month's alimony is hereby acknowledged, such obligation to pay to continue until the wife dies or remarries.' Each party waives all their respective rights to property awarded to the other and any other future division of property or support and maintenance except as provided in the agreement. The agreement also contained the provision for the payment of income tax on alimony awarded to the wife.
On January 5, 1951, plaintiff filed an amended complaint for divorce alleging extreme cruelty and asking for $500 per month for her support and maintenance. Findings of fact and conclusions of law were waived by the defendant and on January 8, 1951, the property settlement agreement was submitted to the trial court for approval. It was approved and incorporated in an interlocutory decree of divorce, in which it was made a part thereof and incorporated therein as if set forth in full. Defendant was ordered to pay plaintiff the sum of $500 per month for her care, maintenance and support as agreed in the property settlement agreement. On January 16, 1952, a final judgment of divorce was granted to plaintiff. In the decree the court ordered that the community property of the parties be divided in accordance with the property settlement agreement approved in the interlocutory decree and the order for support payments as provided for therein was ratified and confirmed. No appeal was taken from the interlocutory or final decrees of divorce and both became final judgments.
On December 23, 1953, plaintiff applied for an order for the issuance of an execution on the grounds that defendant had failed to make the payments as provided in the decree in the sum of $6,700. Plaintiff also secured an order to show cause why the defendant should not be punished for contempt. On December 31, 1953, defendant obtained an order to show cause why the payments provided for in the decree should not be reduced to the sum of $300 per month by reason of a change in his financial status. The motion for issuance of an execution and the orders to show cause were heard at the same time. The trial court reduced the alimony payments, held that the defendant was not in contempt of court for failure to make the payments as ordered in the decree and found that an execution should not be issued against the defendant as 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 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 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, plus income tax due and payable on an income of $4,500 per year, to plaintiff for her support and maintenance instead of the sum of $500 per month and income tax on an income of $6,000 per year. It was decreed that the delinquency owing by defendant to plaintiff to March 10, 1954, is $5,668 and that defendant pay $800 of that amount on or before March 10, 1954; that defendant pay on account of such delinquency in addition to the monthly alimony the sum of $50 per month, commencing March 10, 1955. The issuance of an execution was then suspended so long as defendant made said payments and in default thereof it was ordered that an execution should issue forthwith.
Plaintiff appeals from certain parts of the order and judgment and the principal question to be here decided is whether the payments provided for in the property settlement agreement and final decree of divorce were subject to modification by the trial court.
In Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873, 875, as here, a property settlement agreement had been executed by the parties. The agreement was approved in the interlocutory decree and the court ordered the defendant to comply with it and to make the monthly payments therein set forth. The agreement recited that the parties were separated and had lived apart for some time, that the separation appeared to be permanent, and that "The said parties desire to effect a division of their community property and to provide for the support and maintenance of (plaintiff) and said children by friendly agreement, instead of resorting to court for said purpose." It then provided that certain enumerated property should be conveyed to and become the separate property of plaintiff. The next paragraphs provided that "(defendant) agrees to pay to (plaintiff) for her support and maintenance and the support of their adult daughter and minor son, the sum of one hundred fifty dollars ($150.00) per month. * * * In addition thereto first party agrees to pay for the daughter's Sorority dues and other expenses the sum of twenty-five ($25.00) per month, commencing June 1, 1944, and continuing thereafter so long as said daughter remains an undergraduate in college, and unmarried, but not to exceed (2) years from June 1, 1944." A reduction in the monthly payments was agreed upon in the event that the minor son of the parties left school, either to work or enter the military forces of the United States. It was then provided that upon the marriage of plaintiff all payments to her for her support and maintenance should cease. There, as here, the agreement provided that the respective parties released each other from any and all rights for support, care and maintenance other than as therein provided. The court held: 'A husband and wife may contract with respect to their property, Civil Code, § 158, and if they are living separate and apart they may provide for the support and maintenance of either of them and their children. Civil Code, § 159. Moreover, as between the husband and wife, if the provisions for support and maintenance have been made an integral or inseverable part of the division of their property, and the court in a divorce action has approved the agreement, its provisions cannot thereafter be modified without the consent of both of the parties. (Citing cases.) 'It is clear that the parties executed such an agreement in this case. They expressly stated that they intended finally to settle both the division of their property and their rights and duties with respect to support and maintenance, and each party vaived 'any and all right to support, care and maintenance' other 'than as expressly provided for herein.' It would be contrary to the clearly expressed intention of the parties to hold that the provision for monthly payments constituted a separable agreement for the payment of alimony subject to the continuing jurisdiction of the court to modify.'
In Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881, plaintiff sought to increase the monthly payments set forth in a property settlement agreement and incorporated in the final decree of divorce. It was there held that the provisions for the support and maintenance of plaintiff were an integral and inseverable part of the property settlement agreement and were not subject to the modification sought by the plaintiff.
In Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865, 867, the parties executed a separation agreement providing for a division of their community property and the support and maintenance of plaintiff and the minor child of the parties. Plaintiff was awarded a divorce from defendant and the property settlement agreement was approved, confirmed and specifically incorporated in the interlocutory decree. The defendant was ordered to make all of the payments provided therein to be paid by him and to comply with all the terms and conditions of said agreement. The court held that 'An examination of the property settlement incorporated by reference in the interlocutory decree makes clear that it is an integrated bargain of the type considered in Dexter v. Dexter, 265 P.2d 873, and Fox v. Fox, 265 P.2d 881. Accordingly, the provision for monthly payments may not be modified contrary to its terms.'
In Finnegan v. Finnegan, 42 Cal.2d 762, 765, 269 P.2d 873, it is held that where the husband and wife while living separate and apart entered into a valid contract settling both their property and support rights and secured its approval and adoption by the court, and where the wife has accepted the benefits of the agreement, the husband has at all times performed his obligations thereunder, and neither party has given the other grounds for abrogating the agreement, the agreement is binding on them and on the court, and the court cannot modify the payments or award costs and attorneys' fees contrary to its terms.
In the instant case, as in Dexter v. Dexter, supra, the provisions for support and maintenance were made an integral part of the division of the property of the parties and the court approved the property settlement agreement, incorporating it in the decree, and ordering the payments to be made as provided in the agreement. Under the circumstances shown by the record the provision for monthly payments in the property settlement agreement and in the decree may not be modified contrary to the terms thereof.
Appellant argues that the court erred in refusing to grant plaintiff's motion for the issuance of an execution for the delinquent payments found by the court to have amounted to the sum of $5,668 as of March 10, 1954. The installments accrued within five years after the entry of the judgment and plaintiff was entitled to have an execution issued and levied for the delinquent support payments. Steele v. Steele, 108 Cal.App.2d 595, 596, 239 P.2d 63; Wolfe v. Wolfe, 30 Cal.2d 1, 4, 180 P.2d 345; Di Corpo v. Di Corpo, 33 Cal.2d 195, 201, 200 P.2d 529; Millard v. Millard, 102 Cal.App.2d 249, 250, 227 P.2d 477. In Di Corpo v. Di Corpo, supra, the court held that a writ of execution will issue under section 681 of the Code of Civil Procedure as a matter of right upon installments accruing within the five year period on an ex parte application by the judgment creditor merely showing that such installments remain unpaid, and that upon proof by plaintiff that installments have accrued within five years, the burden was upon defendant to justify an order recalling the writ. In that case the defendant in his affidavit in support of his motion to recall the execution alleged that the children involved were boys seventeen and eighteen years of age and capable of earning their own support and that in view of an injury to his back, he was unable to work and support himself and that to permit an execution on his home would compel him to become a public charge of the county and state. The court concluded that defendant did not make a sufficient showing to entitle him to recall the writ.
In the instant case the reason given by the trial court in its order and judgment for denying the issuance of the writ was that the only manner in which it could be served was by placing a constable in charge of the daily receipts of the defendant, resulting in discredit to him and a reduction of his earning ability. Although issuance of an execution upon a judgment requiring monthly payments may be denied on equitable grounds, Lohman v. Lohman, 29 Cal.2d 144, 150, 173 P.2d 657, it does not appear that such grounds were established herein by the defendant.
Finally it is argued that the trial court abused its discretion in failing to find the defendant in contempt of court for failing to make the payments ordered in the divorce decree. In this connection the court found that the 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.' In Bailey v. Superior Court, 215 Cal. 548, 552, 11 P.2d 865, it is held that a husband who is unable to obey a decree for the payment of alimony cannot be adjudged in contempt for not obeying such decree unless he has voluntarily created the disability for the purpose of avoiding such payment. In the instant case there was a conflict in the evidence concerning the ability of the defendant to comply with the court's order and since there is substantial evidence to support the trial court's judgment in this respect, it will not be here disturbed.
The trial court's order and judgment is reversed in so far as it purports to amend the property settlement agreement. The order and judgment that defendant is not in contempt of court is affirmed and the order and judgment suspending the issuance of an execution is reversed. Each party to pay his own costs on appeal.
BARNARD, P. J., and GRIFFIN, J., concur. --------------- * Opinion vacated 297 P.2d 988.