FOX v. FOX

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

FOX v. FOX.*

Civ. 19235.

Decided: March 06, 1953

Wright, Wright, Green & Wright, Loyd Wright, Charles A. Loring, Dudley K. Wright, Los Angeles, for appellant. Stahlman & Cooper, Los Angeles, for respondent.

This is an appeal from an order modifying a provision in a divorce decree so as to increase monthly payments to the wife from $400 per month to $500 per month and awarding attorney's fees for services rendered in connection with the application for such modification. The payments of $400 per month were provided for by the terms of an ‘Agreement and Property Settlement’ which was approved by the superior court at the trial of the divorce action brought by the wife, respondent herein. The trial court further incorporated the ‘alimony’ provisions of the agreement in the interlocutory judgment of divorce.

Appellant presents three contentions: ‘(1) The property settlement agreement was an integrated agreement and must be wholly approved or wholly rejected. (2) Once an integrated property settlement agreement has been judicially approved, the trial court cannot make an award contrary to its provisions. (3) Regardless of whether or not the property settlement agreement was an integrated agreement, after its approval, the trial court cannot make an award contrary to its provisions.’

Respondent argues that the payment provisions were separate and severable from the property division provisions of the agreement, and that such payments constituted alimony rather than periodic payments in lieu of a more favorable division of the community property; and further, that the respondent did not waive her right to alimony either in the agreement or by her amended and supplemental complaint wherein she sought no relief other than that the court approve and incorporate in its interlocutory judgment the terms of the agreement and order its performance by the defendant.

The ‘Agreement and Property Settlement’ (entered into in April, 1948) recites that ‘the parties hereto are mutually desirous of entering into a property settlement agreement for the purpose of finally and forever settling, adjusting and determining their respective rights and interests in and to any and all property, real and personal, community and separate, now owned or that may at any time hereafter be owned by or be acquired in any manner whatsoever by them and to determine, settle and adjust forever any and all matters or questions in connection with any such property.’

In consideration of their mutual covenants, the parties agreed that each was released from liability for future acts of the other; that earnings or property acquired by each party after the date of the agreement should be the separate property of the party earning or acquiring the same, except as provided in the agreement; and that the custody of the minor children be awarded to the wife, subject to reasonable rights of visitation by the husband. By paragraph Sixth of the agreement, as amended, the parties agreed as follows:

‘Husband agrees to pay to the wife, as alimony, the sum of four hundred dollars ($400) per month, commencing May 12th, 1948, and continuing thereafter to and including the month of December, 1953, (except as otherwise herein provided) at which time all obligation on the part of the husband to make the aforesaid or any other payments to the wife for her support shall thereupon terminate.

‘In the event the parties hereto are hereafter divorced, and the wife shall remarry prior to January 1, 1954, the obligation of the husband to make the aforesaid payments or any other payments for the support of the wife shall ipso facto terminate. Upon such remarriage of the wife, if such event shall occur, or on December 31, 1953, whichever shall be earlier, all payments of alimony to the wife shall cease. Then, and thereafter, during the minority of said Stuart Fox (a minor child then aged six years), the husband shall pay to the wife the sum of one hundred dollars ($100) per month for the support, care, education and maintenance of said Stuart Fox. In the event the parties shall have been divorced and the wife shall have remarried prior to January 1, 1954, (and prior to the date said Stanton Fox (a minor child then aged 18 years) shall have attained the age of twenty-one (21) years), the husband shall likewise pay to the wife, for the support and education of said Stanton Fox the sum of one hundred dollars ($100) per month from the date of said remarriage until said Stanton Fox shall have attained the age of twenty-one (21) years.

‘Notwithstanding the foregoing provisions, it is agreed that should the present United States Government pension now being received by the husband as a disability retirement pension be reduced or discontinued, then the obligation of the husband as above provided to make said alimony payments to the wife, or to make payments to the wife for the support, care, maintenance and education of said children, or either of them, shall be proportionately reduced, such reduction to be at the rate of three and 33/10033100ths dollars ($3.33) for each ten dollars ($10) reduction in such payment; provided, however, that in no event shall such reduction reduce the amount of alimony payable to the wife as hereinabove provided to a sum less than two hundred dollars ($200) per month.

‘In consideration of the foregoing provisions and the promises of the husband, the wife agrees that she will support the minor children of the parties during the time the husband is obligated to pay alimony to the wife as above provided.’

By paragraph Seventh the parties agreed upon a division of their property, making certain provisions with reference to shares of stock which need not be here detailed. The parties further agreed in paragraph Ninth to hold a certain pension fund as their common property. With reference to two $10,000 insurance policies on the life of the husband, he agreed to maintain them in force for the benefit of the wife and children, subject to certain rights in the husband to change the beneficiaries upon remarriage of the wife or the majority of the children. The husband also paid the wife $8,000 in cash.

By paragraph Tenth, the husband agreed to pay the fees of the attorneys for the wife, in consideration whereof the wife agreed that she would not seek recovery of further fees or costs in any action for divorce or separate maintenance between the parties. This paragraph also contained the following provision: ‘The wife further agrees that she will not, in any such action, apply for or seek from the husband any payment of alimony or support money for the children of the parties except in accordance with the provisions of this agreement.’

Each of the parties further waived all right or interest in, or right to administer the estate of the other.

The problem presented upon this appeal must find its solution under the law as enunicated by our Supreme Court in Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265. In that case the court points out the difficulty of problems arising from property settlement contracts which contain support and maintenance provisions. In that class of contracts the court suggests that they generally fall into three categories.

On page 624, 29 Cal.2d, on page 267, 177 P.2d of Adams v. Adams, supra, the court says: ‘The first (category) includes contracts in which the support and maintenance provisions are in the nature of alimony, whether in lump sum or monthly payments, and are separable from the provisions that divide the property. The contract may even provide solely for support and maintenance without reference to a division of property. These contracts, if equitable, are enforceable even though not presented to the court in a divorce action.’ The court then goes on to state that if such a contract is presented in an action for divorce the court has 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.

Again quoting from the decision of the Supreme Court in Adams v. Adams, supra, 29 Cal.2d at page 625, 177 P.2d 267: ‘The second category includes, among others, contracts in which the ‘support and maintenance’ provisions are not in the nature of alimony but are part of the division of property. This category also includes contracts that provide solely for the payment of monthly or lump sums ‘in lieu of community property.’ Such contracts must be treated like other property settlement agreements dealing solely with divisions of property. (Citing authority.) If the contract was not fraudulent when made, and there was no violation of the confidential relationship, it will be binding on the court and there can be no modification of the payments after the decree without the consent of the parties.'

The court then goes on to say:

‘The third category includes contracts in which the wife waives all support and maintenance, or all support and maintenance except as provided in the agreement, in consideration of receiving a more favorable division of the community property. The court cannot add a provision for alimony to such contracts without changing basically the agreement of the parties as to the division of their property.’

In a contract wherein the support and maintenance provisions are in the nature of alimony, whether payable in a lump sum or by monthly payments, and are separable from the provisions that divide the property, the court is empowered to modify the provisions for alimony before, or if the provisions are incorporated in the decree, after judgment, in accord with the general power of the court over alimony. Adams v. Adams, supra, 29 Cal.2d at page 624, 177 P.2d 265. Where the court, at the time of entering the interlocutory decree, does not determine, as it should, the character of the agreement, it may properly do so on modification proceedings. Adams v. Adams, supra, 29 Cal.2d at page 625, 177 P.2d 265; Hough v. Hough, 26 Cal.2d 605, 615, 160 P.2d 15; Tuttle v. Tuttle, 38 Cal.2d 419, 421, 240 P.2d 587; Alexander v. Alexander, 88 Cal.App.2d 724, 727, 199 P.2d 348; Wallace v. Wallace, 136 Cal.App. 488, 493, 29 P.2d 314. And, if the determination of that factual issue by the trial court is not unreasonable, it will not be disturbed on appeal, even though a contrary finding might be upheld. In re Estate of Rule, 25 Cal.2d 1, 11, 152 P.2d 1003, 155 A.L.R. 1319; Davis v. Stulman, 72 Cal.App.2d 255, 269, 164 P.2d 787.

In the instant proceeding the trial court, from the very nature and character of its order, impliedly found that the agreement was not one for division of community property alone, but that the support and maintenance provisions were in the nature of alimony and were separable from the provisions that divided the property. That the court failed, to make an explicit finding thereon is immaterial. Atlass v. Atlass, 112 Cal.App. 514, 517, 297 P. 53.

Whether the determination by the trial court that the agreement here in question comes within the first category of that class of contracts as set forth in Adams v. Adams, supra, 29 Cal.2d at page 624, 177 P.2d 265, was justified, is the question presented to us on this appeal. We are satisfied that the reasonableness and justification of the order made are fully supported by the terms of the agreement.

The parties denominated the monthly payments as ‘alimony’ and they were so characterized in the interlocutory decree. The agreed payments partake of the nature of alimony, since they are to cease upon the remarriage of the wife. Neither the usual propensities or habits of people nor the course of business dictate that if such payments were to be made as a share of the wife's community property they should cease upon the happening of a contingency prior to the payment of a specified amount. The monthly payments further resemble alimony in that under the terms of the agreement and decree they are governed, to a limited extent, by the husband's ability to pay. Should the latter's pension be reduced, his obligation to make the payments was to be reduced at the rate of $3.33 for each $10 reduction in his pension, except that in no event should his payments be reduced to an amount lower than $200 per month.

Another factor that tends to support the conclusions of the trial court is found in the provisions of paragraph 9, subdivision 2, wherein it is provided in subdivision 2(a): ‘If the wife shall remarry prior to the remarriage of the husband, the husband shall have the full right to change the principal beneficiary under either or both of the aforesaid (insurance) policies' which were specified in subparagraph 2. It would seem only reasonable to assume that the purpose of this provision with reference to the insurance policies was to provide for the support and maintenance of the wife in the event the husband died while she was still otherwise entitled to receive monthly payments and would be in lieu thereof. The reason for this would of course be that upon the husband's death the wife's right to receive such monthly payments (if alimony) would cease. On the contrary, had the parties intended the monthly payments to be in the nature of property, then the obligation of the husband would not cease by reason of his death and would be a charge against his estate. No other provision being made for the support of the wife in the event of the husband's death, it would seem obvious that the provisions were intended to be alimony.

All of the foregoing facts and circumstances persuade us that the trial court at the modification hearing was reasonably warranted in concluding that the monthly payments were intended to be and were in the nature of alimony and not a division of property. Weedon v. Weedon, 92 Cal.App.2d 367, 369, 207 P.2d 78; Pearman v. Pearman, 104 Cal.App.2d 250, 252, 253, 254, 231 P.2d 101. Therefore, the court had power to modify, whether such payments were based upon the agreement of the parties and whether or not the agreement was incorporated in the decree. Adams v. Adams, supra, 29 Cal.2d at pages 624, 626, 177 P.2d 265; Hough v. Hough, supra, 26 Cal.2d at page 612, 160 P.2d 15.

The order appealed from is affirmed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.