PUCKETT v. PUCKETT

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District Court of Appeal, Second District, Division 1, California.

PUCKETT v. PUCKETT.

Civ. 13027.

Decided: June 18, 1942

Parker & Irwin and Don S. Irwin, all of Los Angeles, for appellant. Leonard Comegys, of Los Angeles, for respondent.

Based upon the ground of extreme cruelty, respondent obtained an interlocutory decree of divorce from appellant in the Superior Court of Los Angeles County on March 23, 1933, and a final decree of divorce was entered in the action on March 26, 1934. On March 16, 1933, which was prior to the entry of the interlocutory decree, appellant and respondent entered into an agreement by which they settled and determined their respective property interests and rights in a manner which is not here in controversy or under attack. However, there were included in said agreement certain covenants which required of appellant the payment of specific sums of money for the support and maintenance of respondent and the minor child of the parties. In connection with this last–mentioned provision, the agreement provided as follows:

“For the support and maintenance of the wife, and for the support and maintenance of the minor child of the parties, the husband agrees to pay to the wife the sum of $250 per month, the first payment thereunder to be made April 1st, 1933, and a like payment to be made on the 1st day of each succeeding month thereafter.

“From and out of the said $250 per month reserved to be paid as aforesaid, the wife promises and agrees that she will, without further demand upon the husband, support, educate, and maintain the said minor child during her minority.

“It is understood and agreed that the said sum of $250 hereinbefore reserved to be paid shall continue to be paid for such time as the wife shall be married to the husband, and/or for such time as the wife shall not be married to any other person save and except the husband herein. In the event, however, that at some future time the wife shall procure a decree of divorce from the husband, and thereafter shall marry some person other than T. Lyell Puckett, then and in that event all obligation or liability of the husband for the support and maintenance of the wife shall cease and determine and all payments herein reserved to be made for the support and maintenance of the wife shall abate, provided, however, that should the wife at some future time marry a person other than the husband herein, then and in that event the husband shall pay to the wife such sum for the support and maintenance of the minor child as shall be mutually agreed upon between the parties hereto or if the said parties cannot agree upon the sum for such support and maintenance of said minor child, then the husband shall pay to the wife for the support and maintenance of such minor child such sum of money per month as shall be determined by a court of competent jurisdiction after notice to the husband.”

After arranging for the custody of the minor child, it was provided in the agreement that “It is further agreed that the husband shall have the right to approve of any school or schools attended by the said minor child and shall have the right to supervise the education of the said minor child”; and further, that “* * * neither party shall remove the said minor child from the State of California nor permanently from Los Angeles County without the written consent of the other party first had and obtained or upon an order made by a court of competent jurisdiction upon notice to the other party.”

The interlocutory decree of divorce also contained the following:

“It further appearing to the Court that the plaintiff and the defendant, T. Lyell Puckett, entered into an agreement in writing which has been offered and received in evidence as Plaintiff's Exhibit ‘A,’ and which agreement bears date March 16, 1933, and which agreement is for the purpose of settling the property rights between the parties;

“Now, therefore, it is ordered, adjudged and decreed that said agreement of March 16th, 1933, be and the same is hereby approved as to form and contents.

“It is further ordered, adjudged and decreed that in view of said agreement of March 16th, 1933, that the defendant, T. Lyell Puckett, shall pay to the plaintiff as and for the support and maintenance of the plaintiff and the minor child of said parties, Barbara Lyell Puckett, the sum of two hundred and fifty ($250) dollars per month. * * *”

On August 1, 1940, respondent served and filed in the superior court a “notice of motion to modify interlocutory and final judgments of divorce and related matters,” by which she sought permission to remove the minor child of the parties from the State of California so that such child might receive collegiate education at the University of Arizona. This motion was supported by respondent's affidavit, and in opposition thereto appellant filed his affidavit. After hearing upon said motion, the court made its order granting the same and modifying the interlocutory and final decrees as prayed.

On August 21, 1940, appellant served upon respondent and filed in the superior court a written notice of motion to modify the provisions of the decree awarding the sum of $250 per month to respondent for the support and maintenance of herself and the minor child. When this motion came on for hearing and appellant had called his first witness, respondent objected to the introduction of any evidence whatsoever in support of appellant's motion upon the ground that the court was without power or justification to modify the decrees in the manner requested for the reason that the award of $250 per month to respondent, having been made pursuant to a property settlement agreement, was not subject to modification except as provided by the terms and conditions of the property settlement agreement itself.

Concurrently with the hearing of the last–mentioned motion there was presented to the court a motion of respondent, filed September 12, 1940, petitioning “for costs and attorney's fees in reference to the application of the plaintiff” (respondent) “for modification of the interlocutory and final judgments of divorce relative to the place of schooling of the minor child of the parties, and relative to the pending application on the part of the defendant for a modification of said judgments to reduce the monthly payments required of the defendant to be made to the plaintiff.” Upon submission of the matters last above mentioned, the court, on September 26, 1940, entered its order sustaining the objection to the introduction of any evidence in support of appellant's motion to modify the decrees relative to the payment of $250 per month to respondent and denying said motion. In the same order the court granted respondent's motion for the allowance to her of attorney's fees and costs and directed appellant to pay to plaintiff the sum of $100 therefor. It is from such order that this appeal is prosecuted.

Two questions are presented to us by this appeal: (1) Was the court without jurisdiction to modify the award for the maintenance and support of respondent and the minor child of the parties? (2) Was the court without jurisdiction to make the order for payment of attorney's fees and costs?

In connection with the first query, respondent urges that the payment of $250 monthly from appellant to respondent was being made solely by and through the provisions of a property settlement agreement, and is therefore subject to modification only as provided for by the terms of the contract. With this claim we are not in accord. The contract in question was entered into either prior to or during the pendency of the divorce action, but at all events prior to the entry of the decree. That such contract was executed by both parties thereto in contemplation of a divorce proceeding is evidenced by the fact that it was therein provided that should respondent thereafter marry a person other than the appellant, so much of such monthly payment as was utilized for the support of the wife should abate, and only such monthly sum should be paid thereunder as would be adequate for the support of the minor child, which amount would be agreed upon between the parties, or in the event of their inability to agree, the sum to be paid should be determined by a court of competent jurisdiction following notice to the husband of such judicial proceeding. Without question, the trial court in the divorce proceeding was authorized to deal with the matters covered by the agreement and render judgment thereon, to the extent, at least, of properly providing for the support and maintenance of the wife and minor child, should the court find, as it did, that the husband was guilty of the charges preferred against him in the divorce action. The mere fact that the parties chose to stipulate to a decree as to property matters and support of the wife and child did not deprive the court of jurisdiction to deal with such matters in its decrees. Furthermore, it cannot be and is not questioned upon this appeal but that the court was clothed with jurisdiction not only to enforce but to modify the provisions contained in the decrees relative to the support of the minor child during her minority. True, in the instant case the court approved the agreement between the parties, but it did more than that. It specifically provided in the decrees that pursuant to the intention of the parties appellant husband was ordered and directed to pay to the wife the sum of $250 monthly for her support and that of the minor child. Thus this order became a mandatory judgment, for a violation of which the husband could have been punished as a contemnor. The order for the payment of such sum monthly, in other words, became an operative part of the divorce decree and did not thereafter remain merely a part of a contractual obligation between the parties enforceable only by ordinary contract remedies.

In an exhaustive and exceptionally well considered and reasoned opinion prepared by Mr. Justice Carter, the Supreme Court in the case of Plummer v. Superior Court, 20 Cal.2d 158, 124 P.2d 5, at page 9, said:

“In those cases where it is the intention of the parties and the court to have certain provisions of such an agreement constitute a part of the decree or judgment and made enforceable as such, the court may set forth such provisions in the decree and provide therein that the same be performed. This is the usual practice and when it is followed all doubt as to the effect of such provisions is removed.”

In the case at bar we therefore hold that the court, having in its decrees specifically and definitely ordered the performance of the provisions of the property settlement agreement relative to support and maintenance of the wife and minor child, it was clothed with jurisdiction to enforce such provisions, and consequently to modify the same. Petry v. Superior Court, 46 Cal.App.2d 756, 116 P.2d 954.

We come now to a consideration of the second and final question raised on this appeal, as to the jurisdiction of the court to order payment of counsel fees. The law is well settled that the court is without power to award counsel fees for professional services already performed, his holding being based upon the reason that such an allowance for past services is “clearly not necessary to enable the wife * * * to prosecute * * * the action.” Smith v. Superior Court, 89 Cal.App. 177, 186, 264 P. 573, 577. But we are not here concerned with the prosecution of a divorce action instituted by the wife. On the contrary, a final decree of divorce had been entered for some six years when on August 1, 1940, respondent wife filed a notice of motion to modify the interlocutory and final decrees in regard to the removal of the minor child from the State of California to Arizona for completion of her college education. This motion was opposed by appellant, and came on for hearing on August 15, 1940, at which time the court granted the same. On the last–named date appellant filed his motion to modify the decrees by reducing the monthly payments thereunder. On September 4, 1940, respondent wife filed her motion for allowance of attorney's fees “in reference to the application of the plaintiff for modification of the interlocutory and final judgments of divorce relative to the place of schooling of the minor child of the parties and relative to the pending application on the part of the defendant for a modification of said judgments to reduce the monthly payments required of the defendant to be made to the plaintiff.” This motion was noticed for hearing on September 5, 1940, but the ruling thereon was withheld by the court until September 26, when the order was made denying appellant's motion to modify the decrees so far as the monthly payments were concerned, and at this time the court made its award of attorney's fees to respondent wife. Admittedly, therefore, at the time respondent moved the court for an allowance of fees, the professional services rendered in connection with her motion for modification of the decrees in connection with the education of the child had been fully performed; but such motion for an award of attorney's fees to defend against the husband's attempt to modify the decrees in regard to the monthly payments for support was timely because it was not made to assist her in the “prosecution” of any phase of the case, but on the contrary, was to enable her to defend against the motion for modification initiated by the husband. The court was therefore empowered to make such an award in an amount deemed reasonable for the services being performed subsequent to the filing of the husband's motion to modify the decrees; but not for services already performed in prosecuting the wife's motion for modification.

The order appealed from is reversed, and the cause remanded, with directions to the court below to proceed with a hearing and determination upon the merits of defendant's motion of August 15, 1940, to modify the decrees with reference to the monthly payments ordered by such decrees, and also to make such award of attorney's fees, if any, which the court may determine to be reasonable to enable the plaintiff to defend against such last–named motion.

WHITE, Justice.

YORK, P. J., and DORAN, J., concurred.