PLUMER v. Margaret L. Plumer, Real Party in Interest.*

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

Everett T. PLUMER, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR COUNTY OF LOS ANGELES, Respondent, Margaret L. Plumer, Real Party in Interest.*

Civ. 22554.

Decided: November 18, 1957

James E. West, Jr., and Steven Edmondson, Santa Monica, for petitioner. Hahn, Ross & Saunders and E. Loyd Saunders, Los Angeles, for real party in interest.

In this proceeding in certiorari, petitioner seeks annulment of an order of the respondent court vacating the suspension of a sentence for contempt for his failure to make certain payments for the support of his former wife and his child in accordance with the provisions of a judgment of divorce.

On September 22, 1954, petitioner and his former wife entered into an agreement ‘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.’ Paragraph eight of the agreement obligates the petitioner to pay to his former wife $200 a month ‘for the support, maintenance, education, care and custody of said child until he shall reach the age of majority.’ Paragraph nine provides that the petitioner shall pay to his former wife an additional $200 a month ‘as alimony for her support and maintenance * * *.’ In paragraph twenty-three each party releases the other from all present and future claims and rights to support, separate maintenance, alimony, court costs, attorneys' fees, and all property rights of any kind except as provided for in the agreement. Other provisions of the agreement deal with the division of marital property, the payment of debts, future education of the child, and termination and modification of the support provisions.

On November 1, 1954, an interlocutory judgment of divorce was entered in favor of the plaintiff-wife, approving the agreement and ordering the petitioner, in accordance with the terms thereof, to pay $200 a month for the support of the minor child of the parties. On September 28, 1955, the petitioner was found guilty of contempt in failing to comply with the order for alimony and child support and was sentenced to five days in the county jail. The jail sentence was ordered suspended on condition that he maintain current the subsequently accruing payments and make an additional payment of $10 a month to apply on the arrearage, the amount of which was stipulated.

On December 21, 1955, pursuant to application of the petitioner, an order to show cause was issued why the payments for the support of his former wife and the child should not be reduced on the ground that his income has substantially decreased. At the hearing thereof the wife moved to dismiss the order to show cause on the grounds that the payments were ordered pursuant to an integrated property settlement agreement and could be reduced only in conformity with the provisions of the agreement relating to modification and that these did not encompass a decrease in petitioner's income as a basis for modification. After referring the matter to a commissioner, who found in the wife's favor, the court dismissed the order to show cause. Petitioner appealed, contending that the agreement was not integrated and, that if it was, a material reduction in his income was a ground for modification within the express provisions of the agreement. On July 10, 1957, the Supreme Court reversed the order dismissing petitioner's application for modification. The Court held (Plumer v. Plumer, 48 Cal.2d 820, 313 P.2d 549) that the property settlement agreement between the parties was clearly integrated but that the order for support based thereon was subject to modification in accordance with the express terms of the agreement and that, under the terms thereof, a material reduction in petitioner's income was a ground for modification of the order for support of his former wife and his child.

During the pendency of the appeal, the petitioner returned to court several times for the purpose of determining his compliance with the terms of suspension of the contempt order. At these various hearings the petitioner produced evidence of his financial condition to show that although he was not making the support payments in accordance with the terms of the suspension of the contempt sentence, he was complying to the best of his ability. The former wife filed exceptions to the commissioner's findings and recommendations of May 13, 1957, continuing the suspension of sentence; and, on June 13, 1957, the court vacated the suspension of sentence and ordered the same into effect forthwith. A stay of execution under said order was granted pending the determination of the within matter.

Relying upon Bradley v. Superior Court, 48 Cal.2d 509, 310 P.2d 634, 639, petitioner contends that to imprison him for failure to make the support payments under the decree and property settlement agreement here involved would violate the provisions of the state Constitution forbidding imprisonment for debt. Cal.Const. art. I, § 15.

In Bradley the Court was dealing with payments to a former wife which had been determined by a former appeal to be ‘an inseverable part of an integrated adjustment of all property relations of the parties and not * * * a severable provision for alimony.’ At page 521 of 48 Cal.2d, at page 641 of 310 P.2d the Court said: ‘[W]here the parties bargain with each other and agree that the terms of their contract shall thereupon and thenceforth grant, delimit and exclusively define their respective rights and obligations inter se, then it is no the contract alone, and to conventional civil proceedings for the enforcement of contract rights, that they must look for a remedy in the event of breach. Inclusion of such a contract in a judgment of divorce may furnish a basis for subsequent proceedings leading to issuance of a writ of execution but cannot support a commitment to imprisonment for failure to pay the judgment debt.’ At page 522 of 48 Cal.2d, at page 642 of 310 P.2d it is said: ‘[T]hat payments provided in a property settlement agreement which are found to constitute an adjustment of property interests, rather than a severable provision for alimony, should be held to fall within the constitutional proscription against imprisonment for debt. That is, if the obligation sought to be enforced is contractual and negotiated, as distinguished from marital and imposed by law, even though the contract relates to marriage obligations, the remedy must be appropriate to the right asserted. Payments which fall into the category of law-imposed alimony or separate maintenance are based upon the statutory obligation of marital support, may be modified by the court upon a proper showing, ordinarily terminate with the death of either party, and may properly be held not to constitute a ‘debt’ within the meaning of the constitutional provision.'

In Plumer v. Plumer, supra [48 Cal.2d 825, 313 P.2d 553], the Court held with respect to the agreement involved in the instant matter, ‘Under the foregoing rules the agreement in the present case is clearly integrated. It deals both with rights to marital property and rights to support. The parties have set forth their purpose ‘to effect a final and complete settlement of their * * * rights * * * with reference to their marital status and to each other.’ They have released each other from all claims arising out of the marital relationship except as provided in the agreement.' (Emphasis added.) The Court went on to point out that notwithstanding the conclusion that the agreement is integrated nevertheless the order for support based thereon was subject to modification by reason of the express provisions of the property settlement agreement. We think it clear, that the provisions for the support of the wife and child as set forth in the property settlement agreement in the instant matter as interpreted by the decision of the Supreme Court, do not fall within the category of law-imposed alimony but rather are contractual and therefore not enforceable by contempt. That the provisions for support are subject to modification, as determined by the Supreme Court, does not, in our opinion, affect the question of the enforcement thereof. The right to modify the support provisions, the Court held, was by reason of the express agreement of the parties in the property settlement agreement. Hence, the support obligation whether as originally agreed upon by the parties or as subsequently modified by the court pursuant to the terms of the agreement, continues to be contractual and negotiated as distinguished from marital and law-imposed and therefore the enforcement of such payments by contempt proceedings is forbidden by the constitutional prohibition against imprisonment for debt. For the reasons above stated, the order holding petitioner in contempt is void as is the subsequent order vacating the suspension of sentence.

The order dated September 28, 1955, adjudging petitioner in contempt and the order dated June 13, 1957, vacating the suspension of sentence thereon are each annulled.

RICHARDS, Justice pro tem.

FOX, Acting P. J., concurs.