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District Court of Appeal, Second District, Division 2, California.


Civ. 14523.

Decided: October 05, 1944

Holbrook & Tarr and Leslie R. Tarr, all of Los Angeles, for appellant. Sullivan & Lane, of Los Angeles, for respondent.

In this action plaintiff sought a money judgment against defendant, basing her claim upon allegations that defendant had agreed to pay her $200 per month in an agreement, which was made between the parties after their separation and while an action for divorce was pending, and that defendant had failed to make these payments. She obtained a judgment in the sum of $11,800 and interest, from which judgment defendant prosecutes the present appeal.

The agreement which is the basis of the action was executed on August 8, 1927. It was not pleaded in the divorce action then pending between the parties, but it was introduced in evidence after the default of defendant had been entered and in the interlocutory judgment of divorce the agreement was approved by the court.

In the agreement it was set forth that the “total assets” of defendant were of the value of $75,941 and it was agreed that defendant should pay to plaintiff the sum of $35,000 in installments extending over three years with interest upon the unpaid balance after a cash payment of $10,000. Plaintiff was also awarded an automobile of the value of $2250. Plaintiff assigned to defendant her interest in the property listed in the agreement. The fourth paragraph of the agreement is as follows: “The husband further agrees to pay to the wife Two Hundred ($200.00) Dollars upon the 1st day of each and every month during her life unless she remarries, and if she remarries the said monthly alimony payments to cease. The first of said monthly payments to be made on August 1st, 1927.” In the sixth paragraph of the agreement defendant promises to pay to plaintiff certain specified sums for the support of the minor children of the parties.

The provisions of the separation agreement were followed by the court in the interlocutory decree, dated August 9, 1927, and the defendant was ordered to pay to plaintiff the sum of $200 per month “for her support and maintenance.” Defendant complied with all of the provisions of the agreement and of the interlocutory decree until the depression caused a decrease in his personal income and he became delinquent in the sum of $1200 in his monthly payments. He instituted proceedings for a modification of the interlocutory decree to provide for payments of $100 per month for the support of plaintiff instead of the sum of $200 per month. When the matter came on for hearing on May 11, 1934, the court modified the interlocutory decree and ordered that defendant thereafter pay to plaintiff the sum of $100 per month for her support. This order was made notwithstanding plaintiff then contended that the court was without jurisdiction to modify the divorce decree, claiming that the monthly payments which defendant had agreed to make constituted part of a property settlement agreement. No appeal was taken from the order of modification entered on May 11, 1934. The present action is based upon the original contract and plaintiff asserts that she is entitled to a judgment requiring the full payment of $200 per month notwithstanding the order of the court modifying the amount of the monthly payments contained in the interlocutory decree.

An agreement may be made by a husband and a wife for the support of the wife by the husband, commonly called alimony, but such an agreement ordinarily is subject to modification by a court order. Smith v. Smith, 94 Cal.App. 35, 270 P. 463; Roberts v. Roberts, 83 Cal.App. 345, 256 P. 826; Sec. 139, Civil Code. But if the parties enter into a property settlement agreement and as a part thereof provide for periodical payments of support money to the wife in lieu of the assignment of property to her, in whole or in part, the agreement for the periodical payments may be enforced by the courts and is not subject to modification except by agreement of the parties. Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1.

We are satisfied that the paragraph of the separation agreement which provides for the payment of $200 per month to plaintiff should not be considered as part of a property settlement agreement and as preventing the court from reducing the amount of the payments in case the financial condition of the defendant should justify the change. The parties in separate paragraphs of the agreement provide for a division of the property of both spouses in substantially equal parts. In the fourth paragraph the provision for the monthly payments to the wife is independently set forth and is specifically referred to therein as “monthly alimony payments.” In her complaint in the present action plaintiff alleges that in the agreement which is the basis of this suit “defendant agreed to pay to plaintiff as alimony the sum of $200 per month commencing the first day of August, 1927.” It thus appears that not only did the parties in the agreement designate the payments as alimony but the plaintiff has so designated them in her pleading now before us. No point can be made of the fact that in the interlocutory decree of divorce the court approved the “property settlement”, for the agreement was not pleaded in the divorce action. Grant v. Grant, 52 Cal.App.2d 359, 126 P.2d 130.

Plaintiff relies upon Puckett v. Puckett, supra, but the facts of that case and the rulings thereon do not call for an affirmance of the present judgment. In the Puckett case the reviewing court affirmed an order of the trial court refusing to modify an interlocutory decree. In that case it was shown that the plaintiff claimed that the community property of the parties was of the value of $200,000, that in the property settlement agreement she had received only $5000 and an agreement for the payment of $250 per month for her support and that of the minor child. It was held that the trial court was justified in considering the agreement for support payments as an essential part of the property settlement agreement.

The judgment is reversed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.