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

Charles W. FOUST, Plaintiff and Respondent, v. Ismay M. FOUST, Defendant and Appellant.*

Civ. 20848.

Decided: June 24, 1955

Richard A. Ibanez, Los Angeles, for appellant. Herman Wildman, Los Angeles, for respondent.

The question here posed is whether a property settlement agreement, incorporated by reference into a decree, so merges as to be competent authority for the issuance of a writ of execution on such decree. The inquiry arises from the order of the court below, here on appeal, which quashed an execution and restrained the sheriff from conducting a sale of plaintiff's property under and by virtue of such writ.

Plaintiff was awarded a decree of annulment on July 22, 1943. On the day preceding the decree, the parties executed a writing settling their property rights whereby it was provided that plaintiff should pay defendant $50 a month for life or until her remarriage. The court by its decree referred to the agreement settling the property rights ‘and by this reference embodied in and made a part of this judgment’ and attached a copy of the agreement. Subsequently, plaintiff failed to make the payments as provided by the judgment and became indebted to defendant in a sum in excess of $2,400. Such delinquent sum was still unpaid on June 21, 1954, when defendant procured the issuance of the writ of execution on the theory that the property settlement had been merged in the decree.

After levy had been made by the sheriff on the property of plaintiff, the latter made a motion for the court to quash the writ, based upon his own affidavit. In that document, he averred that a copy of the property settlement ‘was attached and by reference embodied in and made part of the judgment.’ The court granted the motion, thereby holding that the property settlement did not merge in the judgment of annulment. Such order is contrary to the law of this state.

Plaintiff contends that the agreement for property settlement did not merge in the decree of July 22, 1943; that the decree merely referred to the property settlement and was not made a part of the decree and that the decree did not order performance of its provisions. In support of such thesis, plaintiff cites Howarth v. Howarth, 81 Cal.App.2d 266, 183 P.2d 670; Kent v. Superior Court, 106 Cal.App.2d 593, 235 P.2d 420; Plummer v. Superior Court, 20 Cal.2d 158, 124 P.2d 5; Price v. Price, 85 Cal.App.2d 732, 194 P.2d 101; Shogren v. Superior Court, 93 Cal.App.2d 356, 209 P.2d 108; and 1 Armstrong's California Family Law, page 426. Each of such authorities has been overruled in each respect as to which it is contrary to Loynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865, 867.

It is, by the Flynn decision, now the law that merger is the substitution of rights and duties under the judgment for those under the agreement of the parties; in any situation requiring a determination of the potency of the judgment to effect the provisions of the agreement, it is necessary to determine whether the parties intended a merger; in the absence from the judgment of an express order to perform the terms of the agreement, the intention of the parties and the court must be derived from such competent proofs as are available; ‘the necessity of referring to an extrinsic document presents no insuperable barrier to giving effect to the decree’; where it is difficult to determine from only the ‘permanent records of the court alone the intended character of the payments invovled, courts do not hesitate to consider all of the admissible extrinsic evidence correctly to interpret their decrees.’

The decree in the Flynn case reads in part as follows: “The property settlement agreement * * * is hereby specifically incorporated herein and made a part of this decree, and defendant is hereby ordered to make all of the payments provided * * *.”

The decree in the case at bar reads as follows: ‘It is ordered and adjudged—that the properties and property rights of plaintiff and defendant herein are adjusted, settled and distributed as per the terms and conditions of that certain agreement dated July 21, 1943, executed by plaintiff and defendant herein, a full and true copy of which agreement is on file herein attached—and which is hereby approved by the court and by this reference embodied in and made a part of this judgment.’ From a comparison of the two judgments, it is clear that there is no substantial difference in the language and intent of the two decrees. In both, the agreements were incorporated by reference; in each instance, the agreement was by reference made a part of the decree and it was adjudged that the property rights of the parties are adjusted and settled as per the terms of the agreement presented to the court. In view of such language, is it possible that either party or the court intended otherwise than to enter a final judgment of the rights of the parties under that document?

Also, from the terms of the agreement, it is apparent that a final adjudication was intended. While plaintiff took over $18,000 and 80 shares of an Arizona corporation, the value of which was not determined, defendant received a six-year old automobile, two United States Bonds of the face value of $1,025 and the household furniture. The only other asset to go to defendant in any degree to compensate her for the lion's share her husband had taken was the paltry sum of $50 per month during her lifetime as a single woman. In view of such disparity in the amounts awarded by the agreement to the parties and of their stipulation that their contract should be made a part of the decree, it requires no Mill or Spencer to infer that the parties intended a final judgment to be entered settling for all time every conceivable claim of either party against the other. If they had had no such purpose, why should they agree to have their contract incorporated in the decree? Surely, by their stipulation, they did not mean that next year, or at any time, defendant should file suit to collect on her agreement. Such an interpretation would lead to absurd results. If a merger was not intended, then the language of the stipulation was meaningless and its presentation and filing were idle acts. If merger is a question of tact to be determined from the intention of the parties and the court, then the agreement of these parties merged; for from all the available evidence the parties intended to adjust all claims of either against the other and to perpetuate such adjustment by a judgment.

Plaintiff attempts to support his position by the dissenting and concurring opinions in Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881; Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873; and Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865. Such argument fails of its purpose. However so eloquent or profound a dissenting opinion or a concurrence may be, it is not authority. Grattan v. Wiggins, 23 Cal. 16, 27; Mix v. Ingersoll Candy Co., 6 Cal.2d 674, 679, 59 P.2d 144; Turney v. Collins, 48 Cal.App.2d 381, 388, 119 P.2d 954.

The judgment is reversed; the court below is instructed to enter an order disolving the injunction issued to prevent a sale under the execution.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.

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