Opinion
No. 16849
10-5-1956
Claudine HERDA, Plaintiff and Appellant, v. Clarence HERDA, Defendant and Respondent.*
Claudine HERDA, Plaintiff and Appellant,
v.
Clarence HERDA, Defendant and Respondent.*
Oct. 5, 1956.
Rehearing Denied Nov. 2, 1956.
Hearing Granted Nov. 28, 1956.
Kaufman, J., dissented.
Henry W. Schaldach, San Francisco, for appellant.
Chas. E. R. Fulcher, Los Angeles, for respondent.
DEVINE, Justice pro tem.
The main question presented on this appeal is whether or not the trial court's interpretation of a contract between spouses at the time of separation and divorce is to be sustained. (A lesser question, relating to allowance of counsel fees, is considered at the end of this opinion.) The agreement, drawn in 1938, provided, among other things, for payment of the sum of $250 to the wife 'as and for the support and maintenance of herself and the minor children of said parties, said payments to commence on March 1, 1938 and to continue monthly thereafter on the first (1st) day of each and every month thereafter.' These provisions, with slight changes in wording, were contained in the divorce decrees, interlocutory and final, and the husband was ordered by the decrees to pay $250 every month for the support of the wife and the children. The agreement as a whole was not copied into the decrees, but reference was made to it as an exhibit attached to the complaint. The trial court construed the agreement and the decrees as imposing an obligation on the husband to pay the stated sum for the support of the wife only until her remarriage. The wife appeals, contending that the sum of $250, as reduced by such amount as should be apportioned for the children, must be paid to her every month without regard to her remarriage.
There is no contention that further support is required for the two children of the parties, for both have attained majority and neither is under any disability. The husband paid the $250 every month until the younger child had attained majority in 1954. One contention of appellant is that because the husband applied for a modification of the amount of support money in 1944 when the older child was about to enter the armed forces and after the wife's remarriage in 1943, and the modification was denied by the court, the matter is res judicata, and it has been determined that the support money is a periodic payment upon a division of community property. However, nothing is before us to show the reasoning of the court when that application was made. The court may have decided that the sum should be paid without reduction for the continuing support of the children, and especially of the younger child, who was then 10 years old. In Meek v. Meek, 51 Cal.App.2d 492, 125 P.2d 117, it was held that the doctrine of res judicata could not apply where prior petitions for reduction of a support order had been denied, but a second child had become of age since the last denial, thus changing the facts sufficiently to prevent application of the doctrine.
We hold that the order based on the earlier application for modification did not determine the question now before us.
It is argued by the wife that the required payment was not in the nature of alimony, but was an inseverable part of an integrated property settlement agreement and was not subject to termination on her remarriage; and by the husband, that the award essentially was alimony, although that term was not used.
The agreement, it is to be observed, does not provide that the payments are to be for the lifetime of the wife, or for a specified time. Not is there an award of a certain sum to be paid at the rate of $250 a month until satisfied. The contract simply states that it is for support, and it is to be paid every month.
In construing the agreement and in determining the nature of the periodic payments, there are basic principles of interpretation to be observed. The cardinal rule of interpretation of contracts is to find the intention of the parties, Civil Code, Section 1636, and in seeking that intention, the object to be attained is the principal factor. In re City and County of San Francisco, 191 Cal. 172, 177, 215 P. 549; Miranda v. Miranda, 81 Cal.App.2d 61, 66, 183 P.2d 61. If a contract is explicit, extrinsic evidence cannot be used to interpret it, but if it is ambiguous, extrinsic evidence is admissible. Tuttle v. Tuttle, 38 Cal.2d 419, 421, 240 P.2d 587. If an issue of fact, such as the intent of the parties to an ambiguous agreement, has been determined by the trial court upon such evidence, the determination, if not unreasonable, will not be disturbed on appeal even though a contrary finding might be equally tenable. Weedon v. Weedon, 92 Cal.App.2d 367, 207 P.2d 78; Pearman v. Pearman, 104 Cal.App.2d 250, 256, 231 P.2d 101.
Applying these basic principles to the cause before us, we believe the trial court's order terminating support for the wife should be affirmed. Extrinsic evidence relating to the history of the settlement and the property of the parties was admitted, not over objection of appellant, but chiefly as presented by her. Although this followed the suggestion of the court that such evidence be produced, still appellant cannot complian (and does not) of its admission, and, in any event, the contract was ambiguous. It sets forth no duration for the payments.
The history of the settlement shows that in 1938, the parties had very little community property to divide. The wife received a heavily encumbered home, its furniture and a life insurance policy. The husband received an automobile. He was earning between $450 and $500 a month. He paid the wife $250, the same amount as appears in the agreement, for the support of the wife and children during the several months preceding the interlocutory decree. These facts may have led the court to conclude in the present proceeding that the periodic payment was intended as support money and was not integrated with a division of property. The agreement was drawn by counsel for appellant, who thus caused the ambiguity to exist. The object herein was to support the wife and the children. For how long? For the children, obviously, until they would become of age, partly because the agreement referred to them, at the time the provision for them was made, as 'the minor children', and partly because the law would not impose the duty of support on the father after the children had attained majority, unless they were ill or infirm. In the same way, it is reasonable to infer that the support for the 'wife', as she was described as such in the agreement, would continue not until death, but until the duty of support would devolve upon another spouse. There is a certain incongruity in interpreting an indefinite contract for support of a wife as requiring a man to continue payments after another has undertaken the duty of support. Although a contract to support a spouse even after remarriage is not against public policy, nevertheless, in interpreting this agreement of uncertain duration, the trial court reasonably weighed the noted incongruity as a factor.
To construe the contract as requiring lifetime payments to the wife would allow her to collect from her former spouse's estate, should he predecease her, the then present value for her life expectancy of that part of the award which might be apportioned to her. Miller v. Superior Court, 9 Cal.2d 733, 735, 72 P.2d 868; Anthony v. Anthony, 94 Cal.App.2d 507, 211 P.2d 331. A clearer expression than was contained in the contract herein should be required in order to make necessary an interpretation which would impose so large a burden.
There remain to be discussed the chief cases cited by appellant relating to: 1. Integrated agreements generally; and 2. agreements which were held to survive remarriage. In the present case, the wife waives all support other than that agreed upon, and the contract recites that the parties intend to settle their rights, and that the wife accepts the support provisions in full satisfaction of her right to community property. These provisions may make the contract unmodificable in that the periodic payments cannot be revised upwards or downwards. Such provisions are to be found in the contracts considered in Ettlinger v. Ettlinger, 3 Cal.2d 172, 44 P.2d 540; Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1; Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265; Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873; Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881; Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865; Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988, and Helvern v. Helvern, 139 Cal.App.2d 819, 294 P.2d 482. In all of those cases, the termination date of payments was expressed (usually, as death or remarriage) and there was no question of ascertaining the intention of the parties in that regard.
The expressions of finality were held, in those cases, to prevent increase or reduction in payments. We do not regard such expressions as necessarily requiring that payments continue for a lifetime where the contract does not that they are to do so. In the absence of contract, the wife would have no right to such support after remarriage, and when this agreement was drawn, section 139 of the Civil Code provided that the husband's duty to support the wife (not only his duty as imposed by a decree of divorce but his general legal duty), ended with the wife's remarriage. Thus, the wife gave up no right to a larger amount of post-marital support for she had none. She could have gained a right to post-marital payment by contract, of course.
We come now to the subject of cases in which remarriage has been held not to terminate support provisions. In Rosson v. Crellin, 90 Cal.App.2d 753, 203 P.2d 841, 842, the contract expressly provided for payments to the wife "so long as you shall live," and in Landres v. Rosasco, 62 Cal.App.2d 99, 144 P.2d 20, and Harnden v. Harnden, 102 Cal.App.2d 209, 227 P.2d 51, the payments were to continue for an agreed period of years. In Lane v. Bradley, 124 Cal.App.2d 661, 268 P.2d 1092, the agreed payment of 40 per cent of the husband's net income was not described as for the wife's support; large property interests were held in escrow therefor and the agreement contained a provision referring to the death of the wife as terminating the escrow giving evidence that it was to remain for her lifetime. In Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 270 P.2d 1036, a going business was divided between the parties, a fact noted by the trial judge in the present case, and the wife in the Taliaferro case testified, under cross-examination, that she regarded the monthly payments as a share of rentals. The trial court's interpretation, based in part on extrinsic evidence, was upheld.
The case of Hopkins v. Hopkins, 46 Cal.2d 313, 294 P.2d 1, does not require that the conclusion of the trial court be reversed. In that case, the parties had agreed that payments would end with remarriage and there had been no remarriage, so that there, again, the question of ending of payments upon remarriage was not the question. That case is authority for the proposition that where support money for wife and for children is lumped together in a property settlement agreement, the contract is not too uncertain to be enforced, but upon the arrival at majority of the children, the court should apportion the amount. In the present case, it is the remarriage of the wife which is the basis of respondent's petition; the attaining of majority of the younger child is the occasion for the petition, but not the basis of it.
Counsel fees should have been awarded, and now should be allowed for this appeal. The agreement specifically provides that the husband shall indemnify the wife for all expenses, costs and expenses in prosecuting or defending any motion or proceeding in any manner affecting the agreement. Sufficient application for such fees was made at the commencement of the proceedings.
The order terminating monthly payments to the wife is affirmed but the cause is remanded with directions for the allowance of attorneys fees and costs in connection with the proceeding, including counsel fees for this appeal.
Costs on appeal to appellant.
COURSE, P. J., concurs.
KAUFMAN, Justice.
I dissent.
I cannot agree with the majority opinion in the interpretation and application of the decisions of our Supreme Court in the cases of Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988 and Hopkins v. Hopkins, 46 Cal.2d 313, 294 P.2d 1. In my judgment these decisions applied to the facts of this case compel a reversal of the judgment with directions to the trial court as hereinafter specified.
The appeal herein is from an order of the Superior Court of San Mateo County granting respondent's motion to terminate support and maintenance payments in a divorce action. The trial court determined that the payments provided for in a Property Settlement Agreement were for alimony and child support and did not represent a division of the property.
Appellant, Claudine Herda, and respondent, Clarence Herda, were married, on June 6, 1925 in Chicago, Illinois. There were two children of this marriage, a son born in 1926, and a daughter born in 1933. The family moved to California, and at the time of the divorce were living in Burlingame. On March 1, 1938, the parties entered into an agreement entitled 'Property Settlement Agreement.' On March 18, 1938, a divorce complaint was filed by Mrs. Herda, alleging extreme cruelty. It was alleged that there was community property, that the rights of the parties had been adjusted and a division of property rights made. A copy of the agreement was made a part of the complaint. In the next and final paragraph of the complaint it was alleged that in said agreement, defendant had agreed to pay plaintiff' as and for her support and maintenance and the support and maintenance of the minor children of the said parties the sum of Two Hundred Fifty Dollars ($250.00) monthly.'
An interlocutory decree of divorce was granted on April 18, 1938, the court ordering that 'the contract of settlement between plaintiff and defendant, a copy of which is attached to plaintiff's complaint as 'Exhibit A' thereof, be, and the same is hereby approved, and each and every of the provisions thereof are hereby expressly incorporated herein by way of reference and made a part of this decree to the same extent as though expressly set out herein.' The interlocutory decree restated several paragraphs of the property settlement agreement in substantially the same language used in the agreement. Paragraph Eighth of the Agreement read as follows: 'The husband agrees in consideration of the premises and mutual covenants and agreements herein contained to pay to the wife the sum of Two Hundred Fifty Dollars ($250.00) per month as and for the support and maintenance of herself and the minor children of said parties, said payments to commence on March 1, 1938 and to continue monthly thereafter on the first (1st) day of each and every month thereafter. * * *'
The interlocutory and final decrees of divorce provided:
'It is further ordered, adjudged and decreed that defendant be, and he hereby is, required to pay to plaintiff herein, as and for her support and the support, care and education of the minor children of said parties, he sum of Two Hundred Fifty Dollars ($250.00) per month, which said payments to commence March 1, 1938, and continue monthly thereafter on the 1st day of each and every month.'
In 1943 appellant remarried. On May 17, 1944, respondent filed a motion to modify the final decree of divorce, asking that he be relieved of paying anything further for plaintiff's support, and requesting that he be required to pay $50 per month for the care, support and education of each minor child. The affidavit in support thereof stated that appellant had remarried, and that the minor, Robert Herda, was about to enter the armed forces. The motion was denied on May 22, 1944, the court allowing appellant $50.00 attorney's fees. At this time the children were eighteen and ten years of age.
On November 5, 1954, respondent filed his motion to terminate the $250 monthly payments, Robert Herda was then 28 years of age and married. Joyce Herda was 21 years of age. Neither child was living with appellant. She was not contributing to their support, nor did they require any assistance from her.
On December 2, 1954, respondent's motion was argued and submitted. Appellant orally moved for attorney's fees for defending the matter. On December 8, 1954, the court rendered a tentative memorandum decision, and gave the parties the opportunity of introducing evidence and offering further argument and authorities as an aid to interpretation of the agreement and decree.
On March 17, 1955, the court made its order terminating the monthly payments.
Appellant contends that the order was erroneous because a court may not alter a decree for support based upon a property settlement agreement between the parties which provides for payment of support.
The first question to be determined is whether or not the court below correctly admitted extrinsic evidence to aid in the interpretation of the agreement and divorce decrees. It is clear that such evidence is admissible if there is any ambiguity upon the face of the agreement or decrees as to the nature of agreement. Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988; Fox v. Fox, 42 Cal.2d 49, 52, 265 P.2d 881; Flynn v. Flynn, 42 Cal.2d 55, 60, 265 P.2d 865; Tuttle v. Tuttle, 38 Cal.2d 419, 420, 240 P.2d 587. The agreement herein was incorporated in the decree and made a part thereof by reference. The court did not specifically order the parties to comply with all of its terms and provisions. Only certain provisions of the agreement were set forth in the decree and the parties ordered to comply therewith, namely, provisions relating to household furnishings, a life insurance policy, the automobile, custody of the children and visitation rights, monthly payments for support of the wife and support, care and education of the children, the right of the wife to move the family from the state at the expense of the husband, and payment by the husband of all bills and budget accounts of the parties. There can be no question but that those provisions of the agreement have been merged in the decree, and it appears that the entire afreement was so merged by the incorporation therein. Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15. But regardless of the merger, it must be determined whether the provision relating to the $250 per month payments is on its face a provision for child support and alimony, or a provision that is at least in part a division of the property of the spouses.
The intention of the parties in entering into this agreement is expressed as follows therein:
'Whereas, it is the mutual wish and desire of said parties that a full and final adjustment of all their property rights, interests and claims be had, settled and determined by said parties in this Agreement, including the custody and maintenance of the minor children of said parties.
'Now, therefore, it is agreed that in consideration of the mutual promises, agreements, and covenants contained herein, it is covenanted, agreed, and promised by each party hereto, to and with the other party hereto, as follows:'
Other significant provisions of the agreement are as follows:
'First: That, except as hereinafter specified, each party hereto is hereby released and absolved from any and all obligations and liabilities for the future acts and duties of the other, and that each of said parties hereby release the other from any and all liabilities, debts or obligations of any kind or character incurred by the other from and after this date, and from any and all claims and demands, including all claims of either party upon the other for support and maintenance as wife or husband or otherwise, it being understood that this instrument is intended to settle the rights of the parties hereto in all respects, except as hereinafter provided.'
'Fourth: The said parties hereto each hereby waive any and all right to the estate of the other left at his or her death and forever quitclaim any and all right to share in the same of the other, by the laws of succession, and said parties hereby release one to the other all right to be administrator or administratrix or executor or executrix of the estate of the other and hereby release and waive all right to inherit under any will of the other and each of the said parties hereby waive any and all right of homestead in the real property of the other, and said parties hereby waive any and all right to the estate or any interest in the estate of the other for family allowance by way of inheritance, and from the date of this Agreement to the end of the world said waiver of the other in the estate of the other party shall from the date of this agreement be effective and they shall have all the rights of single persons and maintain the same relation of such toward each other.'
If the nature of the provision in question can be determined by an examination of the decrees and agreement, then extrinsic evidence could not be admitted to determine that question. The ambiguity which beset the trial judge was the confusion as to what part of the monthly payment was allocable to the children and what part to the wife. The trial court in a tentative memorandum decision shows that aside from the difficulty presented by the above provision, an examination of the agreement showed that it was an integrated agreement having all the indicia relied on in Dexter v. Dexter, 12 Cal.2d 36, 40, 265 P.2d 873. It is my view that the agreement before us is an integrated property settlement agreement and that the amount properly payable to the wife may not be denied her by the court.
Having decided that an ambiguity existed in the provision relating to the payments, extrinsic evidence was received relative to the background of the agreement, the intention of the parties in entering into it, the nature and amount of property owned by the respective parties at the time of its execution. From this evidence the trial judge concluded that the parties understood this to be merely a support provision, and that it did not represent in any way a division of the property.
The most recent pronouncement of the Supreme Court in Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988, holds that where the parties have included a waiver in a support provision in such an integrated agreement stating that they will not seek maintenance or support except as provided in the agreement, they are precluded from contending that the provision is for alimony, since an order allowing alimony is subject to revision at any time, and since the waiver is part of the consideration for the husband's agreement, he cannot seek a modification thereof without changing the property settlement agreement. And, see, helvern v. Helvern, 139 Cal.App. 819, 294 P.2d 482. It is true that the court in the cited case [46 Cal.2d 626, 297 P.2d 992], follows this pronouncement with the statement that 'In the absence of conflicting extrinsic evidence as to the meaning of the agreement, the trial court's interpretation of it is not binding on this court.' The court then states that some extrinsic evidend was received on the division of the property but holds that the trial court's finding that defendant did not receive a greater part of the community property did not support its conclusion that the support provisions were not a part of the consideration for the division of property. The agreement was for a permanent and lasting division of all their property rights. Since the parties could not know how the court would settle property and support rights the amicable adjustment of all doubtful questions would supply sufficient consideration to support the entire agreement. Furthermore since plaintiff in the messenger case, as in the case herein, secured her divorce on the ground of extreme cruelty, had the parties not settled their rights by agreement, the court could have awarded plaintiff all of the community property, and less alimony. Hence, it was said the fact that the community property was in the cited case divided equally, had "no bearing on the validity of the provision of the agreement whereby both parties waived all rights to support and maintenance other than as provided herein."
The trial judge, at the time he was endeavoring to solve the problem in this case did not have the benefit of the above decision, nor or that in the recent case of Hopkins v. Hopkins, 46 Cal.2d 313, 294 P.2d 1, which appears to involve a question almost identical with that herein. In the Hopkins case there was a provision for a monthly payment of $150 for support and maintenance of the wife and minor children as a part of an integrated property settlement agreement. It was held that the provision contained a latent ambiguity which could be solved both by reference to other provisions of the decree and by taking evidence of the subsequent acts and declarations of the parties to arrive at a proper division of the amount. Plaintiff wife in the cited case had not remarried, and was held entitled to receive her proportionate share of the $150 per month under the agreement, since in that case the agreement provided that payments to her were to cease upon her remarriage.
I hold that the trial court should follow the procedure in the Hopkins case, supra, and limit the extrinsic evidence to the solution of this question.
In the present case the wife has remarried. The agreement herein did not provide for that contingency, and it might be argued that the parties contracted in regard to the support provision with section 139, Civil Code, as an inherent part of the agreement for support, but since the installments as to the wife's share are part of the consideration for the agreement as a whole, they cannot be modified. This court in Lane v. Bradley, 124 Cal.App.2d 661, 665, 268 P.2d 1092, held that in such an agreement where it is not expressly or implicitly provided that such payments cease upon remarriage, section 139, Civil Code, will not apply to effect such termination.
Appellant argues that the minute order of May 22, 1944, denying respondent's motion for modification was res judicata that the decree herein was one for continuous payments as an integrated part of a property settlement agreement. No appeal was taken from that order. That motion for reduction was based not only on the fact that the wife had remarried, but also on the fact that the son, who was still a minor, was about to enter the service. He was then 18 years of age. The son had not yet entered the service, and in May, 1944, there was no way of predicting that if he did, he would remain in the army for three years until he reached majority. Both children were minors, and the court could judicially notice that the cost of living had advanced considerably since this decree was made in 1938. The order does not show on what ground it was denied. It may very well have been denied on the ground that $250 was only an adequate allowance for the needs of the two minors. Section 1911, Code of Civil Procedure provides: 'That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.' And, see, Johnston v. Ota, 43 Cal.App.2d 94, 110 P.2d 507; Beronio v. Ventura County Lbr. Co., 129 Cal. 232, 61 P. 958.
Finally, appellant contends that she was erroneously denied attorney's fees in defending this action. It appears that under the terms of the divorce decree appellant is entitled to payment of counsel fees in defending a suit for modification by the husband, and that her ability to pay has no bearing on the matter. The motion for fees was placed before the court, and the court indicated that it would reserve its decision till later. Since the decree provides that the husband is to pay and indemnify the wife for fees and costs in such action, the court should, in the absence of any evidence offered by the appellant as to what the fee actually was, include a reasonable attorney's fee in the order.
I would reverse the judgment with directions to the trial court to take evidence bearing on the question as to what portion of the $250 payment is allocable to child support as of the date of the decree and to then enter an order modifying the decree by reducing said payment by that amount.
I would order the trial court to enter an order allowing appellant a reasonable attorney's fee for defending the motion here involved. --------------- * Opinion vacated 308 P.2d 705.