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


Civ. 18745.

Decided: May 08, 1952

Edgar J. Melchione, Earl Oakley, Los Angeles, for appellant. Walley & Davis and Milton Davis, all of Los Angeles, for respondent.

This is an appeal from an order made after final judgment in a divorce action.

The facts briefly are as follows:

The action was filed July 12, 1934. A copy of an agreement between the parties was attached to the complaint and, ‘in paragraph VI of said complaint its execution was pled’. Appellant was personally served but did not appear. A default was entered. The interlocutory judgment was entered November 19, 1934; the final judgment, January 15, 1936.

The agreement provided that defendant (the husband) was to pay plaintiff $5.00 per month for support with the further provision that, ‘in the event that the business conditions of the second party shall become more favorable, the said second party shall pay a proportionately larger share as alimony to the first party.’ At the time the proceedings herein considered were commenced the payments were $20.00 per month. The contract further provided that, ‘It is agreed that this agreement may be incorporated as part of any decree of divorce hereafter to be rendered in favor of the first party and against the second party, subject to the approval of the Judge there presiding.’

‘On March 13, 1951, an affidavit was filed by respondent whereunder an Order to Show Cause was issued and directed to appellant to Show Cause why a ‘modification’ of ‘alimony’ (supposedly granted and contained in the Interlocutory Judgment of Divorce) should not be granted to respondent, * * * Such order to show cause came on for hearing, whereupon an objection was made by appellant to the Court making any award of alimony upon the ground that no alimony had been made or granted in favor of respondent in either the Interlocutory of Final Judgments of Divorce, and that the power of the Court to grant alimony had, therefore, ceased when the Final Judgment of Divorce was entered without any alimony award having been made in the action'. The court decided in favor of plaintiff and the alimony was increased. Defendant appeals from the order.

It is contended on appeal that the primary question involved is, ‘whether or not the trial court had power and jurisdiction to make the questioned orders'.

It is argued by appellant that since there was no order in the decree for the payment of alimony and the decree had become final that the court was without judisdiction to modify the decree and include such an order thereafter. However, as noted above, the agreement provided, ‘this agreement may be incorporated as part of any decree of divorce’, etc. And the decree provided, ‘It is further ordered that the property settlement filed herein is accepted and made a part of this Decree’.

Quoting from appellant's brief, ‘Appellant feels that the most exhaustive and best considered of the recent cases in this field is the case of Shogren v. Superior Court, 1949, 93 Cal.App.2d 356, 209 P.2d 108, wherein practically all of the former decisions on this subject were carefully considered and reviewed.’ The Shogren case was a contempt proceeding and Young v. Superior Court, 105 Cal.App.2d 65, 233 P.2d 39, as well as some of the other cases relied on by appellant are contempt cases. There is no resemblance between a contempt proceeding and the proceeding herein considered hence such opinions are of no help. Here the order merely increased the amount of the alimony payments to be made.

The conclusion of the court in the Shogren case, supra, is beside the issue; contempt proceedings being quasi-criminal. In the within action the court is merely required to determine the meaning of the words used in the decree and what was intended thereby.

Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15, was an action on a property settlement agreement in a divorce action. It was held that an order theretofore made modifying the divorce decree was res judicata. Although the issues are different quotations and citations are applicable to the issue herein. The decision recites, 26 Cal.2d at page 609, 160 P.2d at page 17, ‘Turning first to the relation between the separation agreement and the divorce decree, it appears to be well settled, that if the agreement is presented to the court in the divorce proceeding for adjudication, and the agreement, or a part thereof, is incorporated in the decree and made a part thereof, the part so incorporated is merged in the decree. (Citing cases.)’

In the Hough case, 26 Cal.2d at page 611, 160 P.2d at page 18, the court points out, quoting from the Michigan Law Review, that, ‘The obligation to pay alimony or support money to a divorced wife is one peculiarly justified by considerations of social desirability and generally prescribed as a consequence to dissolution of the marital relation. Being a continuing obligation, and being subject to scrutiny of the courts as to fairness and adequacy at its inception, it should so remain and the contract of the parties should not be allowed to oust the court of power otherwise exercisable.’ The Hough opinion, 26 Cal.2d at page 612, 160 P.2d at page 18, recites that, ‘Support allowances on the other hand should be subject to the discretion of the court as justice may require. It may well be reasoned that the provision of section 139 of the Civil Code authorizing the modification of support allowances becomes an implied part of the agreement when it is incorporated into the decree. It is said in Smith v. Smith, 94 Cal.App. 35, 47, 270 P. 463, 468:

“The holding of the cases there cited is to the effect that the order allowing alimony is subject to revision at any time. The parties, in making the agreement, will be presumed to have entered into the same with the understanding that the trial court possessed the power to change or modify the award or provision made for support, as the circumstances might require or as the justice of the case might necessitate, the distinction being drawn that in some states, there being no statute similar to our code, the power to change or modify must be reserved in the decree.' (Emphasis included.)

‘The law of California is in harmony with the foregoing principles and policy. A husband and wife may contract with each other with respect to support and property rights. See Civ.Code, §§ 158, 159; Puckett v. Puckett, supra [21 Cal.2d 833, 136 P.2d 1]. An award of alimony in a divorce decree may be modified under appropriate circumstances (Civ.Code, § 139; Leupe v. Leupe, supra [21 Cal.2d 145, 130 P.2d 697]; Puckett v. Puckett, supra), and the incorporation of an agreement in the decree for the payment of support as long as it is not a property settlement agreement does not prevent a modification of the decree under appropriate circumstances.’

As above noted, to support a contempt proceeding, which is quasi-criminal, the decree or order must be specific for obvious reasons. In civil proceedings however the law exacts no such standard. In such proceedings the law, in the administration of justice, is more liberal and, in the circumstances as here presented an appellate tribunal is merely required to determine the meaning of the decree or order and what was intended. Thus its legal effect is established.

The language of the decree in the within action is neither equivocal nor uncertain and is clearly intended to ‘incorporate’ therein and, as a part thereof, the property settlement agreement. This being true the court had jurisdiction to modify the order. Such a conclusion is consistent with the administration of justice.

The order is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.