PLUMBER v. PLUMER

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District Court of Appeal, Second District, Division 3, California.

Margaret L. PLUMBER, Plaintiff and Respondent, v. Everett T. PLUMER, Defendant and Appellant.*

Civ. 2187i.

Decided: February 21, 1957

Fogel, McInerny & West, James E. West, Jr., and Steven Edmondson, Santa Monica, for appellant. Hahn, ross & Saunders, Los Angeles, for respondent.

This is an appeal by defendant Everett T. Plumer from an order dismissing his order to show cause re modification of alimony and child support. The Plumers were divorced in 1954; the interlocutory decree approved and ordered them to perform the terms of a property settlement agreement under which defendant agreed to pay $200 per month for the support of their minor son and an identical amount for the support of plaintiff until her death or remarriage, the latter obligation to continue for five years from the date of the agreement in the event of plaintiff's remarriage within that time. The interlocutory decree has since become final and plaintiff has remarried.

In December 1955, defendant obtained an order to show cause whereby he sought a reduction of these payments to $100 per month each upon his affidavit that the income from his accounting business had substantially diminished and he could no longer meet his fixed business expenses, provide for the necessities of life and comply with the decree. At the hearing before a commissioner, plaintiff moved to dismiss the order to show cause upon the ground that the court was without jurisdiction to modify the payments. The matter was submitted as a question of law. The commissioner interpreted the agreement to mean that the alimony and support provisions of the interlocutory decree were in settlement of property rights, that they were based upon an integrated property settlement agreement, and that the court had no authority to reduce the payments on account of a change in defendant's financial circumstances. The commissioner accordingly recommended that plaintiff's motion be granted, and the court made the order of dismissal from which this appeal was taken.

The sole question presented by this appeal is the proper construction to be given to the agreement of the parties. It is entitled ‘Property Settlement, Support, alimony and Custody Agreement.’ The preamble states that the spouses ‘desire to effect a final and complete settlement of their respective property rights, support, alimony and custody of their child with reference to their marital status and to each other.’ The agreement divided the community property and provided for the payment of various outstanding obligations. It contains the usual releases of after-acquired property, of liability for subsequent acts and contracts, and of the rights of administration and inheritance. The provisions relating to alimony and child support are as follows:

‘8. Husband agrees to and does hereby give the custody of the child of the parties, John Daniel Plumer, to Wife, but Husband shall have the right at all proper and reasonable times to see said child. Husband agrees to pay for the support, maintenance, education, care and custody of said child until he shall reach the age of majority, and for that purpose hereby agrees to pay to Wife the sum of One Hundred Dollars ($100.00) on the 10th and 25th days of each month, * * * making in all the sum of Two Hundred Dollars ($200.00) per month payable hereunder. * * *

‘9. Husband agrees to pay to Wife as alimony for her support and maintenance (in addition to the sums mentioned in paragraph 8 hereof) the sum of One Hundred Dollars ($100.00) on the 10th and 25th days of each month, * * * making in all the sum of Two Hundred Dollars ($200.00) per month payable hereunder, * * *. Husband's obligation to pay said alimony to Wife shall cease upon her death or remarriage, except that in the case of her remarriage said payments shall be continued until five (5) years from September 25, 1954, notwithstanding the fact that Wife may have remarried within said period of time.

‘10. For purposes of this agreement no earnings of Wife or other income obtained by her shall be considered as a ‘changed condition’ and taken into consideration in connection with any attempt of Husband to obtain a reduction in payment for support of Wife or said child, John Daniel Plumer, except such portion of said earnings or other income as shall exceed the gross average monthly sum of Two Hundred Fifty Dollars ($250.00). ‘Average monthly’ earnings or income shall be computed on the basis of the total earnings of income of Wife (other than Husband's payments to her) for the twelve months prior to the filing of Husband's petition for reduction divided by twelve.

‘23. Each of the parties hereto does hereby release and discharge the other from any and all claims and rights, present and future, to support, separate maintenance, alimony pendente lite, alimony, court costs, attorney's fees and from any and all property rights or monetary claims of any nature or kind which each at any time might have against the other, excepting such as are provided for by this agreement.’

Defendant contends that the court erred in holding that the support provisions of the interlocutory decree were an inseparable part of an integrated property settlement agreement and that his monthly payments were not subject to modification on account of a change in his financial circumstances. In this connection, defendant argues that paragraph 10 of the agreement grants him, at least by inference, the right to seek a reduction in the amount of the payments because of his lessened ability to pay. It is conceded by plaintiff that the agreement contemplates a possible modification of the payments, but in one contingency only, namely, when her own income for the calendar year prior to defendant's petition exceeds an average of $250 per month. She argues in defense of the order that the support agreement was an inseverable part of a complete and final disposition of the property rights of the spouses, and that in all respects other than the admitted contingency it is modifiable only by a further agreement between the spouses, citing Van Dyke v. Van Dyke, 126 Cal.App.2d 238, 271 P.2d 910; Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873; Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881; Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865.

Had the parties not included paragraph 10 in the agreement, there would be little doubt that they intended the instrument to be a permanent settlement of all their property rights and that they did not contemplate a modification of the support payments by the court. However, paragraph 10 cannot be ignored. It impliedly sanctions a reduction because of changed conditions in case plaintiff's income should exceed $250 per month but it does not specifically exclude a reduction when defendant's income has diminished. Under defendant's interpretation the sole limitation set up by that clause is the $250 requirement which is applicable only to a change in Mrs. Plumer's circumstances. Under plaintiff's interpretation, since the clause does not specifically give defendant the right to seek a reduction because of his changed circumstances, the parties must be deemed to have intended to exclude it as a basis for modification. The court below concluded that the spouses intended the payments to be modifiable only on account of a favorable change in plaintiff's circumstances. It reached this conclusion solely from a reading of the agreement and as a matter of law, and the matter of interpretation must be so considered by us. Fox v. Fox, supra, 42 Cal.2d 49, 52–53, 265 P.2d 881, and cases cited.

The agreement must be interpreted so as to give effect of the mutual intention of the parties. Civ.Code § 1636. It must be considered in its entirety, Civ.Code § 1641; Broome v. Broome, 104 Cal.App.2d 148, 231 P.2d 171; Lane v. Lane, 117 Cal.App.2d 247, 255 P.2d 110, and its particular clauses are to be subordinated to the general intent. Civ.Code § 1650. Inconsistencies are to be reconciled, Civ.Code § 1652, and, where possible, every provision of the agreement must be given effect in accordance with its general intention or purpose. Todd v. Superior Court of City and County of San Francisco, 181 Cal. 406, 184 P. 684, 7 A.L.R. 938; Royal Ins. Co. of Liverpool, England v. Caledonian Ins. Co., 20 Cal.App. 504, 129 P. 597; De la Questa v. Armstrong Holdings Co., 48 Cal.App. 487, 192 P. 135.

Defendant's application for modification is not in conflict with the provisions of paragraph 10. He did not seek modification upon the ground that plaintiff's earnings had increased since the date of the agreement. The agreement as a whole cannot be construed as depriving defendant of the right to modification in any and all circumstances. Upon the contrary, it implies that defendant would have a right to seek modification upon the ground of changed circumstances if the income of plaintiff should exceed $250 per month. The right of defendant to seek modification does not depend upon a reservation of the right by agreement. It exists unless the purpose of the parties, as expressed in the agreement, was to fix the obligation of support at an amount that would be definite and subject to change only under stated conditions. The agreement, on its face, and as a matter of law, cannot be so construed as to foreclose the right to seek modification.

The order is reversed.

SHINN, Presiding Justice.

PARKER WOOD and VALLEÉ, JJ., concur.