WALSH v. WALSH (1940)

From a judgment of dismissal predicated upon the granting of defendant's motion for a summary judgment, pursuant to the provisions of section 437c of the Code of Civil Procedure, plaintiff appeals.

The complaint discloses that plaintiff is the adult adopted son of Raoul Walsh and defendant, who were husband and wife. Defendant and her husband, February 21, 1927, entered into a property settlement agreement (hereinafter designated as the “first agreement”), which contract was modified by a subsequent agreement between the parties dated October 17, 1934 (hereinafter designated as the “second agreement”); and that defendant has failed, neglected, and refused to provide for the support and maintenance of plaintiff, pursuant to the terms of the contracts aforesaid.

This is the sole question necessary for us to determine:

Did defendant's obligation to plaintiff under the terms of the property settlement agreements above mentioned terminate when plaintiff attained his majority?

This question must be answered in the affirmative and is governed by the following pertinent rules of law:

(1) It is for the trial court in the first instance to construe ambiguous terms in a contract (Barlow v. Frink, 171 Cal. 165, 172, 152 P. 290).

(2) Where a writing is uncertain and either of two constructions may be sustained, it is not within the functions of a court of review to declare that the interpretation given by the trial court should be supplanted by another construction of which the instrument is equally susceptible (Kautz v. Zurich Gen. A. & L. Ins. Co., 212 Cal. 576, 582, 300 P. 34; McNeny v. Touchstone, 7 Cal.2d 429, 435, 60 P.2d 986).

Paragraph VIII of the first agreement read thus:

“The wife shall have the custody and control of the said children, John R. Walsh and Robert R. Walsh, and of their education, until they shall respectively attain to the age of twenty-one years, without any interference whatsoever on the part of the husband. The wife shall at all times, consistent with school attendance by said children, afford reasonable opportunity to the husband to visit the children and take them, or either of them, on recreational or other trips, and like opportunity to the children to visit the husband. The wife agrees that she will, so long as she receives the payments provided for in this agreement, properly care for, maintain and educate the said child or children in respect of whom said payments shall have been so made; but, subject only to this agreement, she may expend the said payments in accordance with her uncontrolled discretion.”

In the present case it is clear that the words “child or children” as used in paragraph VIII of the first agreement are ambiguous. The words are of varying meanings, sometimes having a meaning synonymous with minor, at other times applying to adults as well as minors. It was, therefore, the trial judge's duty in the first instance to determine the meaning which the parties attached to the words when they entered into their agreement. From a reading of the paragraph it is susceptible of the reasonable construction that the parties intended to use the words child and children as synonymous with a minor and minors.

This construction is supported by the fact that the paragraph provides in the first sentence that defendant shall have their custody and control until they reach the age of twenty-one years. This interpretation is further supported by paragraph IV of the first agreement, which provided that, should the wife remarry, her former husband (Raoul Walsh) shall “so long as she [[[[defendant] shall have the custody and control of the children or of either of them, as in paragraph VIII hereof provided, pay to her [defendant], in consideration of her [defendant's] undertaking the support and maintenance of said children or either of them, the sum of Fifty ($50.00) Dollars each per week”.

Since the defendant was to have the custody of the children only until they attained the age of twenty-one years, the portion of paragraph IV quoted indicates the intention of the parties to provide for the support of the children until they reach that age, whether defendant married or remained unmarried.

Applying the rules of law above stated, this court will not disturb the construction placed upon an ambiguous instrument by the trial court, where such interpretation appears to be consistent with the intent of the parties. We are bound by the trial court's implied finding that defendant's obligation to plaintiff ceased upon plaintiff's attaining his majority.

For the foregoing reasons, the judgment is affirmed.

McCOMB, Justice.

We concur: MOORE, P.J.; WOOD, J.