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


Civ. 19049.

Decided: January 27, 1953

Jerry Giesler, Beverly Hills and Robert E. Ford, Los Angeles, for appellant. Loeb & Loeb, Los Angeles (Herman F. Selvin and Harry L. Gershon, Los Angeles, of counsel), for respondent.

The parties hereto were married in 1935. Thereafter they entered into a property settlement agreement which provided for the support and maintenance of Liliane Carre Flynn. In 1942 Mrs. Flynn was awarded a divorce from defendant, the interlocutory judgment decreeing that ‘The property settlement agreement between the parties hereto dated October 11, 1941 and received in evidence herein, is hereby ratified, approved and confirmed and the same is hereby specifically incorporated herein and made a part of this decree, and defendant is hereby ordered to make all of the payments provided therein to be paid by him, at the times and in the manner therein provided, and plaintiff and defendant are hereby ordered to comply in all respects with each and all of the terms and provisions of said agreement and to perform all their obligations thereunder as therein provided.’

The final judgment of divorce provided that ‘wherein said interlocutory judgment makes any provision for alimony or the custody and support of children, said provision be and the same is hereby made binding on the parties affected thereby the same as if set forth herein in full, and that wherein said interlocutory judgment relates to the property of the parties, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto.’

On May 9, 1950, an order to show cause ‘In re modification of alimony, custody of child and child support as ordered in the final judgment of divorce’ issued out of the Superior Court. By this means, defendant sought to terminate or reduce alimony and other payments provided by the property settlement agreement to be made to Mrs. Flynn.

When the matter came on for hearing, plaintiff's counsel objected to the introduction of any evidence on the ground that the court had no jurisdiction to modify the terms of the agreement respecting alimony because ‘there is no incorporation into the interlocutory or final decrees of divorce of the terms or provisions of the property settlement agreement.’

Thereafter, On October 11, 1951, the following minute order was entered:

‘Defendant's Order to Show Cause re Modification of Order of April 7, 1943 having been heretofore submitted by the Court on August 15, 1951, the Court now renders its decision and denies the motion on grounds of lack of jurisdiction, in that there is no direct Order of Court; the Property Settlement is incorporated in the Interlocutory and Final Decrees of Divorce by reference only.’

Defendant appeals.

The sole question presented is whether the provisions for support and maintenance of respondent were made an enforceable portion of the judgment of divorce so as to give the Superior Court jurisdiction to modify them.

The leading case on merger of a property settlement agreement in a divorce decree is Hough v. Hough, 26 Cal.2d 605, 609–613, 160 P.2d 15, 17, where it is stated: ‘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. * * * ‘and as soon as incorporated into the decree the separation agreement is superseded by the decree, and the obligations imposed are not those imposed by contract, but are those imposed by decree, and enforceable as such.’

‘In Lazar v. Superior Court, 16 Cal.2d 617, at page 620, 107 P.2d 249, at page 250, the agreement authorized its incorporation in the decree, but this court in determining whether the agreement was sufficiently incorporated in the decree to justify a contempt citation for disobedience, stated:

“If a property settlement agreement is completed in itself and is merely referred to in a divorce decree or approved by the court but not actually made a part of the decree, then the provisions of such agreement cannot be enforced by contempt proceedings. Baxter v. Baxter, 3 Cal.App.2d 676, 40 P.2d 536; Schnerr v. Schnerr, 128 Cal.App. 363, 17 P.2d 749. On the other hand, if, by the language of the agreement itself, it is shown that the intent was to make the agreement a part of a future divorce decree and, if the agreement is actually incorporated in the decree, then such provisions become a part of the order of the court and may be enforced as such.' (Emphasis added.) The essence of that statement is that the agreement becomes merged in the decree.' (Emphasis included.)

In Price v. Price, 85 Cal.App.2d 732, 734–735–738, 194 P.2d 101, 103, it was stated: ‘The sole question presented by the appeal is whether the trial court erred in granting defendant's motion for judgment on the pleadings. On this point the parties have confined their arguments as to the question of whether if a property settlement agreement has by a recital in the decree been made a part of the Interlocutory and Final Decrees of Divorce, a separate action may be maintained on the agreement itself apart from these decrees.’

The court then discussed the Hough case, supra, and continued: ‘It will be noted from this language that the determining factor is whether the agreement is incorporated into the decree and made a part thereof rather than being made a part of the decree by reference. Obviously there is a difference for if there is an actual incorporation of the agreement into the decree, the decree standing alone then carries within itself the complete measure of the rights and obligations of the parties. In the court's files, the decree or judgment itself supplies all the information necessary to whomsoever may be interested. If recorded it announces to the world the respective interests of the parties in any property involved.

‘If on the other hand the agreement is made a part of the decree by reference only the above it not true. One searching the file could not construct a complete picture of the rights and obligations of the parties from the decree or judgment alone. Reference might be to an exhibit attached to a pleading, to another judgment, or even to an agreement offered in evidence and withdrawn and not available as a part of any public record. * * * It or a true copy thereof would of necessity have to be sought out and produced in order to determine what the complete judgment actually provided. If it could not be produced, or its terms definitely established, then that part of the judgment represented by it could not be enforced. In particular it could not be enforced by contempt proceedings. Hough v. Hough, supra, [26 Cal.2d 605, 160 P.2d 15]; Lazar v. Superior Court, 16 Cal.2d 617, 107 P.2d 249; Schnerr v. Schnerr, 128 Cal.App. 363, 17 P.2d 749. * * * It would seem to logically follow then that if a property settlement is made a part of a divorce decree by mere reference it is not incorporated into the decree within the meaning of that term as it is used in the Supreme Court cases of Hough v. Hough, supra, and Lazar v. Superior Court, supra, and in the District Court of Appeal case of Schnerr v. Schnerr, supra. That consequently contempt proceedings are unavailable to assist in its enforcement and that resort may be had only to ‘the usual contract remedies”. (Emphasis included.)

See, also, Shogren v. Superior Court, 93 Cal.App.2d 356, 358–364, 209 P.2d 108, 110, where under the heading ‘Was the Agreement Sufficiently Incorporated into the Decrees?’ the court discusses the above cited cases and many others on the subject, and concludes:

‘In spite of the confusion that exists in the authorities the later decisions have fairly, although perhaps vaguely, crystallized the rule. A fair summation of the rule as it exists today is the following: (1) If a property settlement agreement is merely referred to in the divorce decree, or approved by the court but not actually made a part of the decree and the performance of any of its provisions ordered, then the provisions of the agreement cannot be enforced by contempt proceedings. (2) If the agreement or any of its provisions are actually incorporated in the decree and the decree orders the performance of such agreement or provision or provisions, then the agreement or the provision or provisions so incorporated are merged in the decree and may be enforced only as the order of the court.

‘Applying these tests to the decrees in our case, we find that the agreement did not become merged therein. While the decrees made the agreement parts thereof by reference and the agreement was physically attached to the interlocutory decree, there was no order made in either decree for the performance of the provisions of the agreement. Therefore, enforcement by contempt proceedings does not lie.’

In the instant case, while the interlocutory decree orders appellant ‘to make all of the payments provided therein to be paid by him’, the terms of the agreement were not actually made a part of the decree, except by reference. The agreement was introduced in evidence in the divorce action as an exhibit only, and did not become part of the judgment roll. In the circumstances and upon authority of the foregoing principles of law, there was insufficient incorporation of the terms of the agreement in the divorce decrees to give the Superior Court jurisdiction to modify them.

For the reasons stated, the order appealed from is affirmed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.