Opinion
Page __
__ Cal.App.2d __ 236 P.2d 639 TUTTLE v. TUTTLE. Civ. 14758. California Court of Appeals, First District, First Division Oct. 25, 1951.Hearing Granted Dec. 20, 1951.
Subsequent opinion 240 P.2d 587.
[236 P.2d 640] Albert M. Hardie, Robert A. Kaiser, Oakland, for appellant.
Gardiner Johnson, Samuel C. Shenk, San Francisco, for respondent.
PETERS, Presiding Justice.
Defendant, based upon her cross-complaint, was granted a divorce from plaintiff on the ground of his desertion. The interlocutory decree divided the community property of the parties and provided for the payment to the wife of certain sums of money for a limited period. Neither the interlocutory nor the final decree (which incorporates the provisions of the interlocutory) mentions any property settlement agreement. Within the period that payments to the wife were still payable, she moved to modify the amount of such payments on the ground that conditions had changed since the entry of the final decree. The trial court denied her motion on the ground that it had no jurisdiction to grant it. The wife appeals.
The record shows that following: In September, 1946, the husband instituted an action for divorce on the ground of cruelty. The wife cross-complained for separate maintenance on the grounds of cruelty and desertion, asking for a division of the community property, and $350 per month for her maintenance and support. Later she amended her cross-complaint to ask for a divorce. The trial court granted an interlocutory decree to the wife on the ground of the husband's desertion. The decree contains provisions in reference to a division of the community property of the parties and for payments to be made to the wife. In this connection this portion of the decree starts off as follows: 'It Is Further Ordered, Adjudged and Decreed that the hereinafter designated property which is found to be community property be, and the same is divided and apportioned in the following manner, to-wit:'
[236 P.2d 641] There then follow nine numbered subparagraphs. These subparagraphs accomplished the following:
1--divided the community cash totalling $2,800 equally between the parties, except that the husband was required to pay certain community debts, and the wife was required to redeem certain jewelry and tools awarded to the husband.
2--divided equally between the parties forty United States Savings Bonds.
3--awarded the furniture and household furnishings to the wife.
4--awarded certain clothing and trunks in the possession of the wife to the husband, and required the husband to pay the storage charges thereon.
5--made the wife the beneficiary of a certificate in the Navy Mutual Aid Association of the cash value of $1,600, the husband to pay the premiums.
6--awarded to the husband a life policy also of the cash value of $1,600.
7--this is the paragraph that provided for limited payments to the wife. It did so in the following language:
'That plaintiff pay to cross-complainant, as and for her support and maintenance the sum of One Hundred Fifty ($150.00) Dollars per month for a period of one year commencing April 10, 1947; the sum of One Hundred Thirty-five ($135.00) Dollars per month for the next year; the sum of One Hundred Twenty-five ($125.00) Dollars per month for the next year; and the sum of One Hundred ($100.00) Dollars per month for the next five (5) years, at which time all payments shall cease and determine.'
8--required the husband to pay certain designated accrued income taxes.
9--required the husband to pay $100 additional fees to the wife's attorney.
On March 10, 1950, which was well within the period that the wife was entitled to payments from her husband, she moved to modify the final decree by increasing the amount of the payments to her. In her supporting affidavit she avers that circumstances have changed since the entry of the final decree in that her husband's income has increased from $360 to $635 per month, and her health has become so impaired that she can no longer work. The husband's counter-affidavit avers that the money payments awarded the wife were not alimony; that the provisions of the final decree awarding his wife limited support were an integral part of a property settlement agreement; that his wife is estopped from now seeking an increase in the payments because, at the divorce trial, in reliance upon the property settlement agreement, he abstained from presenting evidence in support of his complaint; that there was an agreement between the parties settling all of their property rights, and that the limited payments for support were part of this agreement; that the court was without jurisdiction to modify the decree. In support of his contentions of estoppel and lack of jurisdiction the husband includes as part of the affidavit a portion of the reporter's transcript of the divorce action, claiming that such transcript demonstrates the correctness of his contentions. The wife filed a counter-affidavit in which she claims that the use of the reporter's transcript constitutes a collateral attack on the decree, and in which she avers that the award was for alimony and not an integral part of any property settlement. The reporter's transcript of the divorce proceeding incorporated into the affidavit of the husband, shows that the trial court, at the beginning of the trial, asked for a statement of the community property of the parties. After receiving this statement the judge expressed his view that if the things each of the parties charged the other were true 'they should be divorced * * * and the property adjusted.' Thereupon, an unreported discussion was had in chambers. The cause was then continued to the afternoon session. At that session the attorney for the wife announced that, pursuant to the court's suggestion, she was amending her cross-complaint to pray for a divorce. After some discussion, immaterial here, the wife put in her evidence in support of her allegations of desertion. This evidence was properly corroborated. Thereupon the attorney for the husband, in response [236 P.2d 642] to a question from the court, stated that he was offering no evidence in support of his complaint. Then the court asked: 'Have the parties agreed on a settlement of their property rights?' Then the following occurred: 'Mr. Clark: [Attorney for the husband.] Pursuant to the discussion had with your Honor this morning and the suggestions as made in connection with that discussion and as made by your Honor, these have been discussed by the parties and there was the additional feature of the payment of these bills that have been contracted and there has been the suggestion that they be taken off the $2800.' The court and counsel then discussed the manner of awarding the property, concluding in this manner: 'The Court: The plaintiff and cross-defendant, as I understand by your agreement, is to pay to the defendant and cross-complainant the sum of $150 per month for twelve months; the sum of $135 a month for twelve months; the sum of $125 a month for twelve months, and the sum of $100 a month for sixty months, as and for her support and maintenance. At the end of the 96 months the payments are to terminate.'
The trial court on May 9, 1950, entered its order denying the wife's motion to modify the decree. The pertinent portions of that order read as follows:
'(1) That the provision for the limited payments to the defendant and cross-complainant wife which was incorporated into and made a part of the Interlocutory and Final Decrees of Divorce herein, was not permanent alimony, but was an unqualified disposition of property rights resulting in full satisfaction of any and all claims by the defendant and cross-complainant wife for her support and maintenance;
'(2) That in reliance upon the terms of the agreement settling the property rights of the parties herein, which included the limited payments to the defendant and cross-complainant, plaintiff and cross-defendant changed his position and abstained from presenting any evidence in support of his Complaint for Divorce; that the defendant and cross-complainant wife is hereby estopped from making any attempt to modify the terms of said decree;
'(3) That the Court, at the time of the granting of the Interlocutory and Final Decrees of Divorce herein, did not reserve any power to subsequently modify the agreement or the decree;
'(4) That this Court is without jurisdiction to modify the terms of the Final Decree of Divorce entered herein on the 16th day of April, 1948.
'Therefore, It Is Hereby Ordered, Adjudged and Decreed that the notice of defendant and cross-complainant, Lillie Alma Tuttle, to modify the terms of said Final Decree of Divorce herein be, and the same is hereby denied.'
The basic question presented is whether or not the trial court properly interpreted the nature and effect of the divorce decree--that is, did it correctly rule that the payments to the wife were part of her share of the community property, or were such payments in the nature of alimony.
This problem as to the nature of money payments awarded to the wife in a divorce action has frequently been before the courts. The applicable principles are not substantially in dispute. It is in the application of these principles to the facts of a particular case that grave difficulties arise.
The general applicable principles are stated as follows in Puckett v. Puckett, 21 Cal.2d 833, 840, 136 P.2d 1, 5: 'With certain exceptions [citing two cases], a provision for the payment of alimony to the wife in a divorce decree, granted to the wife for the offense of the husband, may be modified by the court under appropriate circumstances. Civ.Code, sec. 139. A husband and wife may contract with each other with respect to the support of each other and their property rights. Civ.Code, secs. 158, 159. A divorce decree adjusting the property rights of the parties is not subject to modification regardless of whether or not it is based upon the agreement of the parties. [Citing cases.] It necessarily follows therefore, that, whatever may be the effect upon that power of modification of an agreement of the parties for alimony alone incorporated into the [236 P.2d 643] decree [citing authorities], if there is a property settlement agreement providing as a part thereof for periodical payments to be made to the wife by the husband and the agreement is approved by the court and the payments ordered by the decree to be paid pursuant to the agreement, that order will not be subsequently modified, except by the consent of the parties. [Citing authorities.]'
Thus, where alimony is payable to a wife for a limited period the court may, upon a proper showing, modify the award and extend the time of payment. Smith v. Superior Court of Yuba County, 89 Cal.App. 177, 264 P. 573; Bechtel v. Bechtel, 124 Cal.App. 617, 12 P.2d 970; Soule v. Soule, 4 Cal.App. 97, 87 P. 205. The fact that the trial court failed to reserve the power to modify is immaterial. Such power is conferred by section 139 of the Civil Code and is impliedly part and parcel of every order for alimony. Respondent concedes that this is the law where the alimony provision is unlimited, but contends that when, as here, the payments are limited as to time, the failure of the trial court to reserve the power to modify deprives the court of that power. There are apparently conflicting declarations of the courts on this problem. Bechtel v. Bechtel, 124 Cal.App. 617, 12 P.2d 970; Tolle v. Superior Court of Los Angeles County, 10 Cal.2d 95, 73 P.2d 607; Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1. An analysis of these cases and of the legal principles involved, indicates that the entire problem turns upon the determination of the legal nature of the payments involved. If the decree provides for alimony payments, limited or unlimited as to time, the court has the power to modify by virtue of section 139 of the Civil Code. But if the payments are part of a property division, then the power to modify does not exist. In determining that question, the fact that the payments are limited as to time and that no power to modify is expressly reserved is a factor, a very minor and certainly not a conclusive factor, to be considered. That factor alone cannot support a finding that the payments were not intended as alimony when all other factors indicate to the contrary.
The trial court has found that the payments here involved were part of a property division. This is normally a question of fact. If adequately supported by the record such a finding will not be disturbed by an appellate court. Pearman v. Pearman, 104 Cal.App.2d 250, 231 P.2d 101; Weedon v. Weedon, 92 Cal.App.2d 367, 207 P.2d 78; Wallace v. Wallace, 136 Cal.App. 488, 29 P.2d 314; Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15. Of course, the interpretation of the final decree, if no admissible extrinsic evidence as to intent is admitted, is a question of law. Estate of Platt, 21 Cal.2d 343, 131 P.2d 825.
In support of her position, the wife places her main reliance on three cases. The first of these is Ross v. Ross, 1 Cal.2d 368, 35 P.2d 316. In that case it was perfectly apparent from the provisions of the decree that the trial court made no attempt to adjudicate the property rights of the parties. The award was clearly an award of alimony, the trial court expressly reserving the power to modify the award.
The second case cited Robertson v. Robertson, 34 Cal.App.2d 113, 93 P.2d 175, is an opinion by this court and is of some help in arriving at the correct decision of the instant case. In the Robertson case the parties informed the court, at the divorce trial, that a property settlement agreement had been approved, subject to the approval of the court. The decree provided that the husband should pay $300 a month for the wife's support, the amount agreed upon by the parties, but no mention was made in the decree of the property settlement agreement, although a formal contract had been entered into prior to the signing of the decree. Several years after the entry of the decree, the payments, on motion of the husband, were reduced to $250 per month. The wife brought an action to recover on the contract. The precise holding of the court was that the wife, by accepting the smaller payments tendered, was estopped from claiming the [236 P.2d 644] larger amount, and that such acceptance amounted to an accord and satisfaction. The opinion contains this language, 34 Cal.App.2d at page 115, 93 P.2d at page 177: 'The agreement may have been used as the general basis for the decree, but it was not merged in the decree and the latter document did not formally approve or disapprove the agreement; hence in this proceeding the power to modify the decree, without consideration of the terms of the agreement, cannot be questioned.'
The third case relied upon is Armstrong v. Armstrong, 132 Cal.App. 609, 23 P.2d 50. Here the divorce complaint had a property settlement agreement attached. The divorce decree, secured by default, awarded the wife $50 a month until she remarried, and $50 a month for the support of the couple's minor child. On subsequent motion of the husband the decree was modified as to both items. The opinion contains this language, 132 Cal.App. at page 611, 23 P.2d at page 51: 'The power of the court to modify decrees of this character is statutory (sec. 139, Civ.Code) and cannot be controlled by the parties [citing a case]; if, by the terms of the property agreement, the rights of the parties are contractual, that is a matter which can be determined only in an action based upon the contract [citing a case]; as it does not appear from the face of either decree that the property settlement was adopted by the trial court, the statutory power of the court to modify cannot be denied.'
The Robertson and Armstrong cases strongly suggest that, unless the decree expressly provides that the payments are, pursuant to agreement, in lieu of community property, the court retains the power to modify even where a formal contract is entered into and made a part of the decree. It would seem that these two cases stand for the proposition, which to us appears sound, that if the court by its decree is approving a property division based upon a property settlement, the divorce decree should so recite. Otherwise, great confusion is bound to result.
Here the husband strenuously contends that the reporter's transcript demonstrates that the award of limited payments to the wife was based on a property settlement agreement. Both parties argue the appeal as if it depended upon whether the husband and wife had entered into a property settlement agreement. For the purposes of interpretation it makes little difference whether or not the payments to the wife were or were not based upon an agreement. Certainly, that is not the decisive question presented. The real question is the nature of the payments. Gosnell v. Webb, 60 Cal.App.2d 1, 139 P.2d 985. Moreover, if there were an agreement, the terms of that agreement became merged with the provisions of the decree and are superseded by it. Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15.
It thus appears that the decree determines the rights of the parties. We must look to that decree to determine the nature of the payments.
One of the leading cases on this subject is Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265. In that case the Supreme Court attempted to classify the various types of property settlement agreements so far as payments to the wife are concerned. It listed three types of agreement:
1. Where the support and maintenance provisions are clearly alimony. Such provisions may, of course, be modified.
2. Where the support and maintenance provisions are a part of the division of property, that is, the payments are in lieu of community property. Such agreements cannot be modified.
3. Contracts where the wife waives all support and maintenance except as provided in the agreement in consideration of a favorable division of the property. Such agreements cannot be modified.
Another classification is suggested in a note in 39 Cal.Law Rev. 250, at p. 255. This note classifies agreements into:
a. Pure alimony agreements--those providing for support and maintenance of the wife but not for a division of the community property.
b. Pure property division agreements--those providing for a division of the community [236 P.2d 645] property, but not for alimony. These agreements may or may not include a non-alimony support provision, i. e., they may allocate the property to the husband and provide for payments to the wife in lieu of her community share.
c. Severable combination agreements--providing for a division of property and for alimony but severable as to each.
d. Integrated bargain agreements--providing for both alimony and a division of the property, but the entire provision for one spouse is in consideration for the entire provision for the other. Here there may be a waiver by the wife of alimony, in whole or in part, in consideration of a more favorable division of the property; or a waiver by her of her property rights, in whole or in part, in consideration of a more favorable alimony settlement.
The question here presented is whether the trial court properly placed this decree in the category of a 'pure property agreement,' or an 'integrated bargain agreement,' neither of which can be modified by the court, or whether it should have placed the decree in some other category that can be modified.
One of the most recent cases on this subject is Pearman v. Pearman, 104 Cal.App.2d 250, 231 P.2d 314, where this court had occasion to review the various factors that determine the nature of payments provided for in a divorce decree. That opinion points out, 104 Cal.App.2d at page 254, 231 P.2d 314, that one of the basic factors to be considered is the nature of the division of the property. If that test be applied here, it is first discovered that the decree recites that the allegations of the cross-complaint and the amendment to it are true. The cross-complaint alleges the existence of certain community property--certain cash, certain bonds, the two insurance policies and the furniture. The cross-complaint prays for an equal division of this property and for alimony. if these allegations are true it is obvious that the payments to the wife could not be a part of her share of the community property, because the trial court divided the community property equally between the parties and, in addition, gave the wife maintenance and support. The payments could not be 'in lieu' of her property rights. The decree also found as true the allegations as to the husband's ability to pay, and the wife's needs. These allegations and findings are totally irrelevant to a division of property and are relevant only if the payments are alimony.
Turning to the provisions of the decree itself, it would appear that the payments must have been intended as alimony. The decree makes no reference to a property settlement agreement. It describes the payments as being for the 'support and maintenance' of the wife. The decree then provides for a division of the 'community property.' In the first six subparagraphs, already summarized, the court divided the community property almost equally between the parties. This, as disclosed by the reporter's transcript, was undoubtedly done pursuant to the oral agreement of the parties. But the payments to the wife provided in subparagraph 7 are in addition to the wife's share of the community property. In other words, this is not a case where the husband was given more than his share of the community property, and the wife given certain 'in lieu' payments to compensate her for the difference. There was no waiver by the wife of her share of the community in consideration of payments to be made to her.
It is also to be noted that the equal division of the community property is in precise conformity with the provisions of section 146 of the Civil Code requiring the trial court, where the divorce is granted, as here, on the ground of desertion, to divide the property equally between the parties. To hold that the payments to the wife constituted an award to her of a portion of the community property would be to hold that the parties agreed, and the court approved, an award giving the wife a share of the community property thousands of dollars in excess of the share awarded the husband. To so hold would be to conclude that the trial court made an award directly contrary to the provisions of section 146. That should not be presumed.
[236 P.2d 646] The Pearman case also suggests that the appellate court should consider whether the payments would terminate upon the wife's death or remarriage, or upon the death of the husband, in determining whether the payments are a division of property or alimony. The decree and the reporter's transcript of the divorce proceedings are silent on this issue. The determination of those questions in the instant case depends on the solution of the very problem here involved. These factors, therefore, cannot be used as tests in the present case.
Thus, whether the decree be considered alone or with the reporter's transcript of the divorce proceeding there is not one bit of evidence, other than the fact that the payments are limited in time, that supports the interpretation of the trial court that these payments represent a division of community property. Quite to the contrary, the language of the decree and the nature of its provisions demonstrate that the payments are in the nature of alimony. This being so, the judgment of the trial court reaching a contrary interpretation must be reversed.
The trial court also based its refusal to consider the merits of the wife's application for modification on a second ground, namely, that the husband, in reliance upon the terms of the agreement (which included the provision for the limited payments), changed his position, and abstained from presenting any evidence in support of his complaint for divorce. It is urged that this created an estoppel against the wife that now prevents her from seeking a modification. It seems too clear to require extended discussion that, if the payments were alimony, as we have held they were, no estoppel could exist. If the agreement between the parties was for a division of the community property and for the payment of alimony, the husband knew or should have known that the provision in reference to alimony was subject to change. There could not be such reasonable reliance on such an agreement that would create an estoppel. Nor could the making of the alimony payments by the husband, and their retention by the wife, create an estoppel. Otherwise, all alimony payments predicated upon an agreement would be immutable and not subject to change. The fact, if it be a fact, that the husband refrained, because of the agreement, from introducing evidence in support of his complaint, could not change the nature of the agreement.
The order appealed from is reversed.
BRAY and FRED B. WOOD, JJ., concur.