Opinion
For Opinion on Hearing, see 33 Cal.Rptr. 610, 385 P.2d 2.
Rebecca Wells Smith, San Francisco, for appellant.
Garrett & Speier, by Dan L. Garrett, Jr., Henry C. Krivetsky, San Francisco, for respondent.
DEVINE, Justice.
Appellant was awarded an interlocutory decree of divorce from respondent in 1951 and final decree in 1952. A property settlement agreement was incorporated in both decrees, and respondent was ordered to pay $150 per month for the support of appellant, and was ordered to carry out the terms of the agreement. The court specifically reserved the right to modify the child support provisions. The terms of the agreement which are relevant to this appeal are these: 'WHEREAS: (a) The parties are husband and wife, have insurmountable differences, contemplate a divorce suit, and desire to settle all their respective property and other rights. * * * 7. The husband agree: (a) to pay in lawful money directly to the wife until her death or remarriage as and for alimony and support money the sum of $150.00 each month commencing October, 1951, together with the additional sum of $100.00 per month allocated $50.00 apiece for the support of the children of the parties hereto; such payments are to be made in 2 installments of $125.00 payable between the 1st and 5th, and the second payable between the 15th and 20th of each month thereafter. * * * (e) In the event of an increase from any source in husband's present income of approximately $6,000 annually, net before taxes, then the monthly payments herein provided for, to wit: $150.00 to the wife and $100.00 to the children or the apportionment thereof shall be increased in direct proportion thereto and paid to the wife directly. * * * 10. The parties do hereby release each other and relinquish to each other all right of support, alimony or community property rights, including the right to inherit, which she or he may have had or now have against each other by virtue of their marriage except as herein provided, and do accept this agreement, if fully performed by both parties, in full settlement of any and all rights arising out of their marriage, except as herein provided * * *.'
The property of the spouses was divided as follows: wife received all furniture and household goods, and beneficiary rights to $12,000 life insurance, payment of current bills and taxes, $150 a month alimony (plus $100 a month for child support); husband received an automobile and a public relations business which produced about $6,000 a year before taxes. The business had no physical assets except the automobile. There may have been accounts receivable, but no amount is given. No evidence of the value of any of the physical properties or of the business was produced.
At the hearing on an order to show cause, to which further reference is made in the next paragraph, appellant testified as follows: 'Q. How was it worked out, this formula about the increase? A. Well, as [appellant's lawyer] called it, a step-ladder clause, that should Mr. DiMarco's business increase that in directly [sic] proportion the alimony and child support would be increased. * * * Q. Was it discussed as to who should have the business? A. Not in words like that, not that the business was at issue. Q. Oh, no one said anything about who should have it, in your presence? A. Not that I heard. * * * Q. You say that the business of Mr. DiMarco at the time was not at issue. I take it it had no physical assets to your knowledge? A. The car, the automobile. Q. And was there a balance owing on the car at the time? A. I don't know. Q. To your recollection was Mr. DiMarco making payments on the car to some bank? A. Well, it would be through the business. Q. And insofar as you knew, the business had no assets that you wanted? A. I don't--I didn't know what the business had. Q. And so far as you know, you didn't give up anything? A. No, I was primarily concerned with just the furniture and the children.'
In 1960, appellant filed an order to show cause why respondent should not be held in contempt, with her supporting affidavit. An integrated agreement is one in which the parties have agreed that the provisions relating to division of property and the provisions relating to support constitute reciprocal consideration. (Plumer v. Plumer, 48 Cal.2d 820, 824, 313 P.2d 549.) Such an agreement may not be modified without the consent of the parties.
If a certain trio of provisions is contained in an agreement, conclusive evidence exists that the parties intended an integrated agreement. These provisions are: that the purpose of the parties is to reach a final settlement of their rights and duties with respect to both property and support, that they intend each provision to be in consideration for each of the other provisions, and that they waive all rights arising out of the marital relationship except those expressly set out in the agreement. (Plumer v. Plumer, supra, at p. 825, 313 P.2d at p. 552; Anderson v. Mart, 47 Cal.2d 274, 279, 303 P.2d 539; Messenger v. Messenger, 46 Cal.2d 619, 628, 297 P.2d 988.) We find that the agreement between the parties does not contain so much as to render it conclusively an integrated agreement. It does not contain an expression that the provisions for support, the $150 per month and the additional percentage, were in consideration for the property awarded to the husband. This is not a trivial or technical omission. It is true that the parties agreed to divide what property they had, and also that the husband agreed to support the wife in certain ways, but the agreement for support may have been in recognition of a duty to support, or in recognition of a likelihood that the court would order support, and not because of an equating of property rights received by the husband with periodic payments to the wife. The agreement does not state mutual considerations and is not conclusively an integrated one.
An agreement may be integrated, of course, even without the expressions which would make it definitely so. (Dexter v. Dexter, 42 Cal.2d 36, 41, 265 P.2d 873.) It is necessary to look to all of the terms of the agreement and to all of the circumstances in order to ascertain the intent of the parties. (Pearman v. Pearman, 104 Cal.App.2d 250, 253, 254, 231 P.2d 101.)
That what was agreed upon was alimony and not a series of payments as a substitute for property appears from these factors: (1) The business, with its adjunct, the automobile, which was all that the husband received, really was nothing more than himself considered as an economic entity--his ability, personality, experience, and efforts to be exerted in the future. In yielding 'the business' to him, the wife simply made it possible for him to pay $3,000 a year for her and the children Tuttle v. Tuttle,
Messenger v. Messenger, Grolla v. Grolla, Yarus v. Yarus, Weedon v. Weedon, Pearman v. Pearman,We have not overlooked the argument of appellant that in the interlocutory and final decrees the court expressly reserved the right to modify provisions for the support of the minor children, and that the court thereby impliedly recognized that other payments were not subject to modification. We believe, however, that this does not outweigh the considerations given above. The expression of the reservation as to support for the children was surplusage, because the court had continuing jurisdiction in respect of child support, which could not be altered by agreement between the parties. (Krog v. Krog, 32 Cal.2d 812, 817, 198 P.2d 510.)
We conclude that the provisions for support of appellant, both the $150 per month and the contingent increase, are severable from the property division, and are modifiable by the court. This does not mean, however, as respondent in his brief assumes it does, that the contingent increase provision was or could be obliterated or modified by the court as to accrued installments. Alimony may not be modified, in so far as installments have become due (Civ.Code, § 139; Keck v. Keck, 219 Cal. 316, 320, 26 P.2d 300; Steele v. Steele, 108 Cal.App.2d 595, 596, 239 P.2d 63). If the escalator provision is in the nature of alimony, as respondent contends it is, and as we hold it to be, nevertheless it was ordered paid by the court in the interlocutory and final decrees of divorce (respondent was ordered to carry out the terms of the agreement), and any order of modification is operable prospectively only. The order which was made simply holds the agreement to be non-integrated and orders certain arrearages to be paid. We do not regard it as an attempt by the court to do that which it could not do, namely, to reduce alimony payments retroactively. Whatever steps may be taken to collect unpaid balances under the sliding scale, until any modification shall have been granted, are for the parties' and the trial court's future action.
Order affirmed.
DRAPER, P.J., and SALSMAN, J., concur.