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


Civ. 13361.

Decided: June 18, 1947

Edmund J. Hall and Alan J. Critcher, both of San Francisco, for appellant. FitzGerald Ames Sr., Hugh B. Miller and John H. Lenz, all of San Francisco, for respondent.

The trial court, on the application of Mrs. Patton, defendant and cross-complaint in a pending divorce action, ordered Mr. Patton to pay his wife $100 per month alimony pendente lite, and $100 attorneys' fees, and $10 costs. From these orders the husband appeals. The sole question presented is whether, as a matter of law, the trial court was precluded from making such awards because of the existence of a property settlement agreement between the parties in which it was provided that the husband should not be liable for the support of his wife or for attorneys' fees.

These parties were married in September, 1943 . They first separated in March, 1945. On March 14, 1945, they entered into a property settlement agreement. Under the terms of that agreement the husband agreed to and did pay to his wife $500, and the husband received all of the other property of the parties. The agreement contained this provision: ‘Husband shall not be liable for support, maintenance, costs or attorneys' fees of Wife and in this respect, wife releases Husband for all claims whatsoever from the beginning of the world to this date and for all time to come.’ Thereafter, the parties resumed marital relationships, but again separated in June, 1945. On July 2, 1945, the parties entered into a supplementary agreement in which they ‘ratified and confirmed’ the prior agreement, and by which the husband agreed to and did pay to his wife $250 more ‘in full settlement of all claims and demands, and of all property rights of the parties.’

In January, 1946, the wife commenced an action to cancel the two agreements on the ground of the alleged fraud of the husband. Prior to that time, in July, 1945, the husband had brought an action for divorce against his wife and she had cross-complained on the grounds of cruelty. The two actions were consolidated, and, after a trial on the merits, the court, on August 13, 1946, found that the two agreements were based on a valid consideration and that no fraud was perpetrated by the husband. Judgment was entered in the fraud action in favor of the husband. The wife has appealed from that judgment and that appeal is now pending. At the same time that the court decided the fraud case it decided the divorce actions then pending by a judgment to the effect that neither party was entitled to a divorce.

In the meantime, in May, 1946, the husband commenced a second action for divorce, charging desertion. In September, 1946, the wife filed an answer and cross-complaint. In these pleadings she charged her husband with cruelty all during their married life, and also with adultery, the act being alleged to have been committed on August 29, 1946, subsequent to the entry of the judgments in the fraud and first divorce case. The cross-complaint included a prayer for alimony and suit money. The cross-actions for divorce in the second divorce case were pending when the orders here appealed from were made.

From the affidavits of the parties, and from the evidence produced at the hearing, it is apparent that the wife is in need of financial assistance and cannot maintain her defense or offense in the pending divorce actions unless she has temporary alimony and suit money. The evidence also shows that the husband is financially able to make the payments ordered without undue hardship. The husband makes no contention to the contrary, but places his sole reliance on the contention that the property settlement agreements deprived the trial court of its otherwise discretionary power to grant temporary alimony and suit money. The contention lacks merit.

In the ordinary case, in the absence of a property settlement agreement, there can be no doubt that the trial court has the statutory power, in its discretion, to grant alimony pendente lite, and suit money, which power is to be exercised in the light of all of the factors in the case pointing to the reasonable needs of the wife and the available means of the husband. § 137, Civ.Code; see cases collected 1 Cal.Jur. p. 964, § 19; 1 Cal.Jur. p. 992, § 46. The husband urges, however, that the wife has contracted away this right. He points out, correctly, that under § 158 of the Civil Code a husband and wife are free to enter into any contract with each other respecting property as they would be if unmarried, except that under § 159 of that code they cannot agree to alter their legal relations as husband and wife. While it must be conceded that the contracts here involved do not fall within the prohibitions of § 159, it does not necessarily follow that a husband and wife may contract away the discretionary powers conferred upon divorce courts by statute. Section 137 of the Civil Code states, in no uncertain language, and without limitation, the power that may be exercised by the divorce court in such cases, and embodies a most important statement of the public policy of this state. So far as pertinent here, that section reads: ‘When an action for divorce is pending, the court may, in its discretion, require the husband or wife, as the case may be, to pay as alimony any money necessary to enable the wife, or husband, to support herself and her children, or to support himself and his children, as the case may be, or to prosecute or defend the action.’ It has consistently been held in this state that all property settlement agreements entered into prior to divorce must be entered into subject to the discretion vested in the trial courts by § 137, supra. The leading case is Steinmetz v. Steinmetz, 67 Cal.App. 195, 227 P. 713 (hearing denied by the Supreme Court). In that case, as in the instant case, the husband appealed from an order granting temporary alimony and suit money. In that case, as in the instant case, the parties had entered into a separation agreement by which the wife waived all claims to support. In that case, as in the instant case, the husband contended that his wife had contracted away whatever rights she otherwise might have under § 137 of the Civil Code. The court stated the question involved in the following language (67 Cal.App. at page 196, 227 P. at page 713): ‘Does a contract between husband and wife settling out of court their property rights, in accordance with the provisions of section 159 of the Civil Code, which contract does not show upon its face that it is contra bonos mores, and which contract has not been adjudicated null and void because obtained by fraud, undue influence, or for any other reason, deprive the trial court of its power to grant alimony pendente lite under the provisions of section 137, Civil Code?’

After a most interesting review of the pertinent authorities the court answered the question presented as follows (67 Cal.App. at page 198, 227 P. at page 714): ‘The answer to appellant's position that he has a right to stand upon his contract with the respondent until the same is set aside in a proper proceeding is that under the decisions hereinbefore cited all such contracts must be made subject to the discretion of the trial court vested in it by section 137 of the Civil Code.’

The Steinmetz case stands unequivocally for the position that, even if the property settlement agreement be valid in a legal sense, the trial court, prior to the approval of such contract in the divorce action, cannot be divested by such agreement of its statutory power to grant alimony pendente lite, and suit money, in its discretion, if it feels such to be necessary.

The rule of the Steinmetz case was approved by the Supreme Court in Locke Paddon v. Locke Paddon, 194 Cal. 73, 227 P. 715, which was also an appeal from an order granting the wife temporary alimony and suit money. The court, 194 Cal. at page 81, 227 P. at page 718, citing § 137 of the Civil Code and the Steinmetz case, stated: ‘Even if the agreement be not void, it is subject to the sanction of the court, and does not deprive the court of its power to grant temporary alimony under the statutory authority therefor.’ See, also, Ott v. Ott, 127 Cal.App. 325, 326, 15 P.2d 897.

In an extended article on ‘Property Settlement Agreements' in 14 So.Cal.L.Rev. 373, the author, Hon. Emmet H. Wilson, citing the Locke Paddon and Steinmetz cases, states, at p. 377: ‘Even if the agreement be not void, it does not deprive the court of its power to grant temporary alimony and costs under its statutory authority.’

The same thought is expressed by 1 Nelson on ‘Divorce and Annulment’ (2d Ed.) p. 440, § 12.40, where the author states: ‘Ordinarily, however, it is held that such an agreement [separation agreement] does not preclude an allowance for temporary alimony or suit money, where the necessity therefor is shown.’ The author cites, in support of the text, the Steinmetz case, and cases from Ohio and Washington, with a New York Supplement case being indicated as contra.

The reason for the rule is obvious. While the validity of a separation agreement does not depend upon the approval of the divorce court (Roberts v. Roberts, 83 Cal.App. 345, 256 P. 826) that court has certain statutory powers in relation to support. Such contracts are not binding on the divorce court until they are submitted to and approved by that court in the divorce action. Moog v. Moog, 203 Cal. 406, 264 P. 490; Sanborn v. Sanborn, 3 Cal.App.2d 437, 39 P.2d 830. The divorce court is not bound by a contract between the parties as to the amount of support money payable as such, the power to make the award as to support money being derived from the statute and not from the contract. Soule v. Soule, 4 Cal.App. 97, 87 P. 205; Mathews v. Mathews, 55 Cal.App. 661, 204 P. 27; Hughes v. Hughes, 68 Cal.App. 195, 228 P. 675; Smith v. Superior Court, 89 Cal.App. 177, 264 P. 573; Chadwick v. Chadwick, 95 Cal.App. 690, 273 P. 86; Armstrong v. Armstrong, 132 Cal.App. 609, 23 P.2d 50. This being so, although the contract may be a valid contract, the court is not necessarily bound by it.

It is quite clear that nothing is contributed to the husband's position on the present appeals by the fact that the instant property settlement agreements have been upheld by another department of the Superior Court against the claim that they had been secured by fraud, even if the prior judgment were final, which it is not. The power of the divorce court conferred by § 137 of the Civil Code to grant alimony pendente lite, and suit money, exists irrespective of the validity or invalidity of the property settlement agreement. It is, therefore, of no significance that such contracts have been held to be supported by consideration and that no fraud was exercised by the husband.

In his briefs the husband places his main reliance on three cases, but none is in point. The case of Queen v. Queen, 44 Cal.App.2d 475, 112 P.2d 755, involved a suit on a separation agreement and had nothing to do with the power of the court to grant alimony pendente lite or suit money. In re Davis' Estate, 106 Cal. 453, 39 P. 756, and Estate of Walker, 169 Cal. 400, 146 P. 868, simply involved the right of the wife (Walker case) or the right of the nominee of the wife (Davis case) to be appointed administratrix of the deceased husband's estate after having waived, by separation agreement, all rights in the husband's property. In both cases the Supreme Court upheld the trial court's determination that by the contract the wives involved had waived their rights under § 1365 of the Code of Civil Procedure, now § 422 of the Probate Code.

At the oral argument counsel for the husband placed considerable reliance for a reversal on the recent decision of the Supreme Court in Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265. He contended that in that case the Supreme Court conclusively determined that the orders here made by the divorce court were beyond that court's power. That case is now one of the leading cases on many of the legal consequences that follow the execution of a valid property settlement agreement, but it did not at all discuss, because it did not involve, the power of the divorce court to order payment of alimony pendente lite, or suit money. That case involved an appeal from an interlocutory decree of divorce which provided for the support and maintenance of the wife until further order of the court. In other words, it involved permanent alimony, and not temporary alimony. The facts of that case demonstrate the inapplicability of the rules there announced to the problem here involved. The parties separated and executed a property settlement agreement, which provided for a division of property and for support of the wife for 18 months. The wife waived any other support money, in consideration of the assignment to her of the major portion of the community property. Several months after the execution of the agreement the wife sued the husband for a divorce, and, among other things, prayed for support as set out in the agreement, and for approval of that agreement. At the trial she testified that the husband had complied with all of his obligations under the agreement, and that the agreement was acceptable to her. The trial court, however, refused to approve the agreement limiting the support to 18 months, approved an amendment to the complaint, and then approved the property settlement agreement except as to the 18 months' limitation as to support, and as to that, granted permanent support. This was held to be beyond the power of the divorce court. In so holding, Mr. Justice Traynor, speaking for a unanimous court, made a most interesting and informative review of the law on this subject. He pointed out that in making separation agreements the parties may provide for support in any one of three ways: (1) By a contract in which the support provisions are in the nature of alimony, and are separable from the division of property provisions. As to this type of contract the divorce court ‘has the power to modify the provisions for alimony before or, if the provisions are incorporated in the decree, after judgment in accord with its power over alimony generally.’ 29 Cal.2d at page 624, 177 P.2d at page 267. (2) By a contract in which the support provisions are not in the nature of alimony but are part of the division of the property. As to this type ‘there can be no modification of the payments after the decree without the consent of the parties * * * [but] the court in the divorce action may grant [permanent] alimony to the wife and approve the agreement as well, since these agreements purport to deal only with the division of the proeprty of the parties.’ 29 Cal.2d at page 625, 177 P.2d at page 267. The determination of whether the particular contract is one for the division of property or whether the payments are alimony is for the divorce court. (3) The third type of contract is where the wife waives support in consideration of receiving a more favorable division of the property. As to these contracts the divorce court cannot add a provision for permanent alimony, because so to do would basically change the agreement of the parties. It was held that the Adams case fell in the third category, and that the court could not award additional alimony and approve the property settlement.

The case does not determine that, by a valid agreement waiving support, the wife has waived support pendente lite, or suit money. The Supreme Court was careful to point out that in the divorce action that court should carefully scrutinize the agreement, the circumstances under which it was made and the nature and value of the property in order to determine the real nature of the agreement. That cannot be done until the divorce case is tried on its merits. The fact that the property settlement agreement is valid does not determine into what category it may fall. Until the divorce case is tried on its merits that fact cannot be ascertained. Until that time the discretionary power conferred on the divorce court by § 137 stands unimpaired.

The orders appealed from are affirmed.

PETERS, Presiding Justice.

WARD, and BRAY, JJ., concur.