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

Dorothy A. ANDERSON, Plaintiff and Respondent, v. Maudie O. MART, as Administratrix of the Estate of William E. Anderson, also known as William Everett Anderson, deceased, Defendant and Appellant.*

Civ. 16638.

Decided: March 23, 1956

Johnson & Harmon, San Francisco, for appellant. Timothy A. O'Connor, San Jose, for respondent.

This action was brought by a former wife against the estate of her deceased former husband upon a claim filed against the estate for the present value, based upon her life expectancy, of the support provision of a property settlement agreement. The court gave plaintiff judgment for $14,190.1 Defendant appeals.

Questions Presented.

1. Was the incorporation of the agreement in the interlocutory decree valid?

2. Was the support provision an integral and inseverable part of the property settlement agreement?


March 12, 1948, plaintiff and decedent entered into the property settlement agreement. June 22nd, plaintiff sued for divorce. Decedent, in propria persona, filed an answer. The case was tried as an uncontested matter. July 23rd, an interlocutory decree of divorce was entered granting plaintiff a divorce, awarding custody of the minor child to plaintiff, and ordering decedent to pay plaintiff ‘$60.00 per month as and for the support and maintenance of said plaintiff and the minor child * * *.’ It further decreed that the property settlement agreement ‘be, and the same is hereby approved and ratified, and the terms thereof are incorporated herein with the same force and effect as if set forth in full herein.’ A copy of the agreement was annexed to the decree. October 10, 1949, a final decree of divorce was entered, incorporating all of the orders and provisions in the interlocutory decree. September 24, 1951, the parties entered into a ‘Stipulation In Re Modification of Interlocutory and Final Judgments and Decrees of Divorce.’ It was entitled in the court and cause and provided that the interlocutory and final decrees ‘may be modified so as to provide that the defendant pay to plaintiff the sum of Fifty Dollars ($50.00) a month as and for the support and maintenance of plaintiff and the minor child of the parties hereto, and that the above-entitled court may cause to be made and entered herein its order so modifying said decrees.’ Although the stipulation was not filed, nor the decrees modified, decedent thereafter paid plaintiff $50 per month only. April 5, 1952, plaintiff's former husband died. On the rejection of plaintiff's claim by the administratrix of his estate, plaintiff brought this action.

1. Incorporation of Agreement in Interlocutory Decree.

Defendant contends that the court had no power to approve or incorporate said agreement. In the divorce action complaint plaintiff alleged that she did not have sufficient money or means with which to support herself and the minor child, and that the sum of $60 per month was a reasonable sum therefor, and in the prayer asked that decedent be required to pay such sum. The only reference to the agreement was ‘That there is no community property the result of said marriage of the parties hereto, a property settlement agreement having been entered into by and between the parties.’ There was no specific request for approval of the agreement. There was a request ‘for other and further relief.’

Contending that the approval of, and incorporation of, the agreement went beyond the pleading, defendant cites cases such as Baar v. Smith, 201 Cal. 87, 255 P. 827; Morrow v. Morrow, 40 Cal.App.2d 474, 105 P.2d 129; Burtnett v. King, 33 Cal.2d 805, 205 P.2d 657, 12 A.L.R.2d 333 Smith v. Smith, 40 Cal.2d 461, 254 P.2d 1. None of these cases is in point. In the Baar case no cause of action was alleged or attempted to be alleged against certain defendants. Therefore, the court held a judgment for costs against them was improper. In the Morrow case a judgment was entered establishing a Nevada judgment which was not set forth in the complaint nor did the prayer ask that it be established. The court held that the failure to plead it and to ask for that relief made the judgment void. The Burtnett case was a default one holding that the failure to ask in the complaint for a division of the community property made its disposition by the trial court void. Interestingly, the court stated and cited cases in support, that where support money or alimony is involved, ‘this issue is so germane to the issue of divorce that a defendant must anticipate an award therefor although there is no prayer to that effect.’ 33 Cal.2d at page 810, 205 P.2d at page 659. It would appear that in our case, where the property settlement agreement is mentioned in the complaint and that agreement has a clause ‘Subject to approval by any Court,’ the issue of approval is so germane that the decedent should have anticipated that approval would be considered by the court. (The Smith case is discussed later.)

Although an uncontested action may be considered as a default proceeding,2 and in a default action the relief granted cannot exceed the prayer (see cases cited above), the circumstances here preclude defendant from claiming that decedent did not acquiesce in the action of the court in approving the agreement. Here, the agreement expressly contemplated that it was to be submitted to the court for approval. (The support provision states ‘Subject to approval by any Court of competent jurisdiction.’) The complaint referred to the fact of there being a property settlement agreement. Decedent appealed from neither decree. He entered into a stipulation modifying the decrees, thereby necessarily admitting their regularity.

2. The Agreement.

Was the support provision integrated into and inseverable from the property settlement agreement?

In Pearman v. Pearman, 104 Cal.App.2d 250, 253, 231 P.2d 101, 103, the court states: ‘No single factor can be relied upon in any given case to determine whether monthly payments are in the nature of property or alimony. The agreement must be taken as a whole and consideration given as to the circumstances under which it was made and the nature and value of the property being divided and its relation to the amount of the periodic payments. Puckett v. Puckett, 21 Cal.2d 833, 841–842, 136 P.2d 1.’

The agreement states: ‘Whereas, the parties hereto desire to avoid expense, delay, inconvenience and litigation with respect to the settlement of their property rights and obligations * * *.’ In paragraph ‘First’ besides releasing each party ‘from any and all obligations and liabilities for the future acts of the other party,’ ‘each party is hereby released and absolved from any and all claims and demands of the other, including all claims of either party upon the other party for support and maintenance as husband and wife, or otherwise, it being understood that this instrument is intended to settle the rights of the parties hereto in all respects, except as hereinafter provided.’ ‘Fifth: That each party does hereby accept the provisions herein made for him or for her in full satisfaction of his or her right to the community property of the parties, or other property acquired after marriage by either party, and in full satisfaction of his or her right, if any, to alimony or support and maintenance.’ The agreement divided money and bonds equally between the parties. Of two automobiles the husband received the better. The wife received the home (later sold for $6000) and furnishings, the husband a lot, later appraised in his estate at $600. ‘To take from such periodic payments the character of modificable alimony it is not essential that the wife has received more or less than her share of the community property and that that fact has influenced the amount of the periodic payments allowed her. ‘* * * at the time a property settlement is made, the parties may be uncertain as to which of their property is community rather than separate, and they will ordinarily now know how the court in the divorce action will find the facts or how it would, in the absence of an acceptable agreement, exercise its discretion in dividing the property and awarding alimony. The amicable adjustment of these doubtful questions with respect to the property and support and maintenance rights of the parties may alone supply sufficient consideration to support their entire agreement.’' Lane v. Bradley, 124 Cal.App.2d 661, 665, 268 P.2d 1092, 1094.

Paragraph ‘Fifteenth’ provided: ‘It is understood and recognized by the parties hereto that they can control the custody of the minor child of the parties hereto only to the extent that their agreement coincides with the order which any Court of competent jurisdiction may make for the best interest of said child.’ Paragraph ‘Sixteenth,’ which gives rise to the present controversy, provides: ‘Subject to approval by any Court of competent jurisdiction, Husband agrees to pay to Wife the sum of Sixth ($60.00) Dollars per month as and for the support and maintenance of Wife and the minor child of the parties hereto, commencing forthwith and continuing in a like sum each and every month thereafter.’ Paragraph ‘Eighteenth’ provides: ‘* * * this agreement is intended to be, and is, a full, final and complete settlement of the property rights of the parties hereto and of all claims which either party has or might claim to have had against the other, were it not for this agreement.’

In drafting a property settlement agreement, a husband and wife can choose one of three forms with respect to providing the wife and perhaps children, if any, with support. First, they may draft the agreement to provide a division of all the community property and in a separate and severable clause indicate their intentions as to the amount of alimony which should be given to the wife. The divorce decree giving such payments of alimony will be subject to being modified under Civil Code, § 139. Secondly, the parties may agree upon a property division and include a provision that the husband periodically pay ‘support and maintenance.’ The problem then is one for the courts to decide whether the payments so provided were meant to be in the nature of a property division or simply true alimony. Finally, the parties may integrate the provisions for division of the property with the support settlement, in which case the support payments become a part of and inseverable from the property settlement. In reality what we have then are two extreme situation, one where the support is alimony and the other where the support is in the nature of a property division.

Defendant contends in spite of the fact that the agreement specifically provides that each party releases the other from all claims for support and maintenance and ‘in full satisfaction of his or her right, if any, to alimony or support and maintenance,'3 and is intended to be in full settlement ‘of all claims which either party has or might claim to have had against the other,’ that nevertheless, the support agreement is not an integrated part of the property settlement clause, because of the words in paragraph sixteenth ‘Subject to approval’ of a court. Paragraph sixteenth follows the statement in paragraph fifteenth to the effect that the parties recognize that the control of custody of the minor parties must coincide with the order which a court may make. As the support provision is for both mother and child it necessarily must be subject to court approval. Hence that reservation in paragraph sixteenth is in no wise contrary to the other definite provisions.

Defendant points out that paragraphs first to fifth contain general provisions; paragraphs sixth to tenth, provisions giving property to the wife; paragraphs eleventh to fourteenth, provisions giving property to the husband; paragraphs fifteenth and sixteenth concern custody of the child and support of both child and mother. While the omission of the wife's support provision from the area of paragraphs sixth to tenth may be of some significance, it is not controlling in any degree. Nor does the inclusion of child support with that of the wife in paragraph sixteenth determine that the provision is by way of alimony and maintenance and not by way of settlement of community rights. See Taliaferro v. Taliaferro, supra, 125 Cal.App.2d 419, 426, 270 P.2d 1036.

Defendant contends that the allegation in the divorce complaint of plaintiff's financial need, the order of payment in the interlocutory decree, and the stipulation modifying the decree, all point to an understanding by plaintiff and the divorce court that paragraph sixteenth in the agreement was merely a promise to pay alimony, severable from the whole agreement. We see in the complaint nothing more than an allegation to bring to the attention of the court when it would consider whether to approve the agreement, and particularly the support provision, the fact of plaintiff's financial need of such payment.

When a court approves of a property settlement agreement it may properly order the support payment provided therein to be paid so there could be no question of its power to enforce such payment by contempt proceedings. Thus the order in the decree does not make the provision severable from the agreement. It was not necessary in order to prevent an interpretation that the support payment is severable from the agreement for the stipulation modifying the decrees to state that the decrees and the agreement be modified. The stipulation necessarily modifies the agreement as well because the stipulation states that the decrees are modified ‘so as to provide’ that the decedent thereafter pay the reduced sum.

It is to be noted that in the Dexter, Finnegan and Taliaferro cases, supra, the courts in finding that the support provided in the settlement agreement was a division of property, pointed to language in the agreements to the effect that ‘they intended finally to settle both the division of their property and their rights and duties with respect to support and maintenance, and each party waived ‘any and all right to support, care and maintenance’ other ‘than as expressly provided for herein.’' Dexter case, supra, 42 Cal.2d at page 41, 265 P.2d at page 876. Such similar language exists in the present agreement in paragraphs first, fifth and eighteenth. It would be contrary to the very expression of the parties to hold that the support was simply alimony and thus would not be a final settlement as to the rights of the parties each against the other.

However, in Puckett v. Puckett, 21 Cal.2d 833, at page 842, 136 P.2d 1, at page 6, it states: ‘The presence of the provision that the monthly payments are for the support and maintenance of plaintiff and the child do not necessarily indicate alimony rather than a property settlement. The agreement must be taken as a whole.’

The facts in this case are entirely different from those in Smith v. Smith, supra, 40 Cal.2d 461, 254 P.2d 1. There the parties entered into a property settlement agreement in which the wife expressly waived all alimony. In her divorce complaint she asked for approval of the agreement excepting “any provision therein respecting payment of alimony.” 40 Cal.2d at page 463, 254 P.2d at page 2. She then asked for “at least token alimony”. The court approved the agreement and ordered the defendant to pay $1 per month for her support. Later the wife applied to the trial court to increase the support to $100 per month. That court refused to so do on the ground that the decree had approved the agreement waiving alimony. The Supreme Court, however, held that in the complaint, the wife had asked the trial court to withhold approval of the provision by which she waived alimony and to grant her nominal alimony, and that although the decree stated that the agreement was approved, in the light of the complaint and the award of alimony the court had actually refused to approve the waiver of alimony and hence was entitled to award alimony. There the award of alimony was inconsistent with an approval of the entire agreement. Here the order in the interlocutory decree for payment of support was completely consistent with the support provision of the agreement.

The absence of a provision that the wife's support would terminate upon her remarriage is an indication that alimony was not intended. See Lane v. Bradley, supra, 124 Cal.App.2d 661, 665, 268 P.2d 1092. The following language from Dexter v. Dexter, supra, 42 Cal.2d 36, at page 41, 265 P.2d at page 876, is applicable; ‘When, as in this case, however, the parties have made the provision for support and maintenance an integral part of their property settlement agreement, the monthly payments will ordinarily have a dual character. To the extent that they are designed to discharge the obligation of support and maintenance they will ordinarily reflect the characteristics of that obligation and thus have the indicia of alimony. [Citations.] On the other hand, to the extent that they represent a division of the community property itself, or constitute an inseparable part of the consideration for the property settlement, they are not alimony * * *.’

The judgment is affirmed.


1.  This judgment exceeds the appraised value of the estate by $4920.57.

2.  See Blackwell v. Blackwell, 86 Cal.App.2d 513, 516, 194 P.2d 796, which action under the circumstances there was so considered.

3.  See Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873; Finnegan v. Finnegan, 42 Cal.2d 762, 269 P.2d 873; Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 270 P.2d 1036, for the effect of such a provision.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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