BRATNOBER v. BRATNOBER (1956)

The question upon this appeal from an order modifying a divorce decree by reducing the amount to be paid monthly for the support of the wife and minor children, is whether the husband's undisclosed expectation of an increase in income at the time he agreed to the rates of payment specified in the decree and the subsequent failure of fruition of those expectations, constituted a change in circumstances in the sense of furnishing a legal basis for the modification.

The modifying order contains these findings: ‘* * * there has been a change in circumstances surrounding the financial condition of the plaintiff cross-defendant since the entry of said interlocutory judgment of divorce in this: that the provisions of said interlocutory judgment for the support and maintenance of defendant and cross-complainant and the minor children of the parties was based upon an oral agreement by the plaintiff and cross-defendant at the time of the trial of the above entitled action, to pay the sums provided in said judgment, and that said oral agreement was thereupon made the basis for said judgment; that no evidence as to the financial condition of the plaintiff and cross-defendant, nor of his earnings or earning capacity, nor of the needs of the defendant and cross-complainant and the minor children of the parties was adduced at the trial of the above entitled action, as appears from the stipulation of the parties hereto relative to the testimony of Edward L. Barry, one of the attorneys for the defendant and cross-complainant; that plaintiff and cross-defendant made said agreement with the hope and expectation and understanding that his earnings and monthly income would be substantially increased immediately after the entry of said interlocutory judgment, either in the position in which he was then employed or in another position which he was expecting to take shortly after the entry of said interlocutory judgment; that neither of these expectations were realized, and that as a result plaintiff and cross-defendant has not been able to make the payments required for support and maintenance from his earnings and income; that he was obliged to borrow money in order to make the payments under said judgment up to and including February 26, 1954; that the net income of the plaintiff and cross-defendant from all sources is $338.62 per month; that he has no property, goods or income of any kind which he may use to comply with the orders of this court with respect to support and maintenance of the defendant and cross-complainant and said minor children other than his earnings as aforesaid, and that plaintiff and cross-defendant is presently unable to comply with the terms of said final judgment with respect to the payments therein ordered for the support and maintenance of the defendant and cross-complainant and the minor children of the parties.’

The evidence shows that respondent's take-home pay at the time he agreed to the rates of payment was $338.62 per month and that it is still the same less $2.00 because of increased social security deductions.

Respondent contends there is evidence that at the time of the agreement he disclosed his intentions. We do not find any in the record. Respondent's affidavit in support of his motion to modify is silent on that subject. An affidavit by the attorney who represented appellant in the divorce proceeding states that the support payment fixed by the decree ‘was not conditioned upon any increase in earnings. Nothing was said about the provisions of the decree being based upon anything which was to take place in the future. Nothing was discussed or considered which involved any question as to future payments.’ At the hearing below respondent was asked by his counsel: ‘Wasn't it a fact that the possibility of your raise—of a raise in your position—wasn't that discussed between us, including counsel for your wife?’ An objection was interposed and there ensued a discussion between court and counsel, at the conclusion of which respondent's counsel said to him: ‘Did you answer my last question, whether or not the expectancy of a raise on your salary was discussed by you and the attorneys for your wife.’ Respondent answered, ‘Yes'; literally, that he had already answered the question. A little later the court inquired: ‘Did you expect a raise, regardless of what you said to anybody,’ to which he replied, ‘Yes.’

Moreover, the finding that there has been a change in circumstances is limited to the probative facts recited, those which follow the expression ‘in this: that,’ the unrealized expectations which respondent harbored at the time of the agreement and the interlocutory decree, with no mention in these findings of any disclosure of those expectations to appellant, her counsel, or the court. See Garrison v. Edward Brown & Sons, 25 Cal.2d 473, 478, 154 P.2d 377; In re Estate of Kerr, 127 Cal.App.2d 521, 523, 274 P.2d 234.

The agreement in question was oral and was made in chambers during a conference between the parties, their counsel, and the trial judge. Respondent states in his brief (appellant in her reply brief concurs) that the following took place at that conference: ‘Before any testimony was taken, the parties and counsel, in the Chambers of the trial judge, had a discussion as to the amount that should be paid for the support of Geraldine and the children in the event that a divorce was granted. Geraldine wanted a total of $400 or $500 per month. Charles' ‘take home’ pay was represented to be between $300 and $350 per month.' The parties finally agreed upon the figure of $250 per month, of which $100 per month was to be paid for each of the minor children and $50 per month for Geraldine.'

Whatever the situation might have been if respondent had disclosed his expectations at that conference (concerning which we express no opinion), the divorce court's action in basing the support provisions of the interlocutory decree upon the oral agreement in the absence of any such disclosure (in the light, also, of the representation that respondent's ‘take home’ pay was ‘between $300 and $350 per month,’ as in fact it was) can not possibly have been predicated upon any expected increase of income. The frustration of respondent's secret hopes and expectations can hardly operate as a change of the financial circumstances upon which that order was based.

It is an established principle that the amount of support awarded in a divorce decree can not be reduced without a showing that there has been a change in circumstances since the entry of the decree. Ralphs v. Ralphs, 86 Cal.App.2d 324, 325, 194 P.2d 592, and cases there cited. It seems axiomatic that there is no such showing when predicated merely upon the failure of realization of an expectation that his income would increase, which the husband and father harbored but did not disclose when he agreed to the amount of the award and the award is based in part at least upon his agreement. Although there appears to be no reported decision in this state directly upon this point and the law of contracts is not directly applicable, the principle underlying the rule that the undisclosed intentions of a party to a contract do not furnish a basis for its modification, Brant v. California Dairies, Inc., 4 Cal.2d 128, 133, 48 P.2d 13; Bell v. Minor, 88 Cal.App.2d 879, 882, 199 P.2d 718, does seem applicable. In Alabama it has been held that any ‘anticipated increase in income on the part of the husband at that time [the time of the divorce decree], which may not have materialized, cannot be considered’ as a ground for reducing alimony payments. Aiken v. Aiken, 221 Ala. 67, 127 So. 819, 820; followed in Colton v. Colton, 252 Ala. 442, 41 So.2d 398, 399, where the amount awarded by the decree was predicated upon an agreement of the parties; in neither case does it appear that the husband's anticipations were disclosed by him at the time of the decree.

Such cases as Pencovic v. Pencovic, 45 Cal.2d 97, 287 P.2d 501, and Woolams v. Woolams, 115 Cal.App.2d 1, 251 P.2d 392, do not lend aid to respondent's argument. In each, the court, when making an award, took into consideration factors which bore upon the ability of a husband or father to pay. That alone sufficiently distinguishes them from a case, such as this, in which the husband and father did not disclose to the court for its consideration the expectation of increased income which he now claims motivated him when he agreed to the amounts awarded.

Respondent further contends that the fact that he was obliged to borrow some $3,200 from his mother in order to make the overdue payments up to February 26, 1954 (which he did make just before giving notice of his motion to modify the decree), itself is evidence of a change of circumstances sufficient to serve as a basis for the modification. As we read the modifying order, this loan transaction was not treated by the trial court as a change in respondent's financial circumstances. It is ture that the order states that respondent was obliged to borrow money to make the payments mentioned but this recital comes after the finding that the change in his financial circumstances consisted of his making the agreement in the expectation that his income would be substantially increased and the failure to realize that expectation. The order then goes on to say ‘that as a result * * * [respondent] * * * has not been able to make the payments required * * *; that he was obliged to borrow money in order to make the payments * * *,’ and so on. This we do not interpret as a finding that his being ‘obliged to borrow’ brought about a change of circumstances. It was merely the result of the frustration of his secret hopes, his undisclosed expectations.

We would add that our examination of the record convinces us that at the hearing in the superior court respondent tried the case upon the theory that the frustration of his expectation of increased compensation was the change in circumstances. His affidavit which accompanied his notice of motion was to that effect. It did say that he was obliged to borrow money in order to make payment under the judgment but listed this as one of the results of the change in circumstances. Similarly upon the trial his testimony was directed to his unrealized expectations. Toward the end of his testimony he was asked where he got the money which he did pay to appellant under the judgment and he replied that he borrowed it, borrowed it from his mother. We derive neither from that nor from any other part of the record a suggestion that in the trial court respondent claimed that this loan transaction effected a change in his financial condition. For aught that appears in the record he neither claimed nor tendered evidence that borrowing the money and paying it to appellant reduced his assets or diminished or impaired his earning capacity. In short, it merely marked the substitution of one creditor for another (his mother for his former wife), to the extent of the $3,200 thus borrowed and paid over from one to the other.

Respondent invokes Becker v. Becker, 64 Cal.App.2d 239, 148 P.2d 381, and Shulman v. Shulman, 125 Cal.App.2d 120, 269 P.2d 923, as holding that the incurrence of financial obligations to third parties is a proper subject for consideration on a motion to modify an alimony award. That is true but in each of those cases there were additional factors. In neither of them was there a showing as to what the court had before it concerning the financial needs of the wife or the financial ability of the husband when it made the former award. In the Shulman case the wife subsequently transferred her home to her sister without consideration, an act which could warrant consideration, an act which could warrant an inference of lessened financial need. The husband in the Shulman case sold a ring and borrowed $2,000 from a bank upon the security of a mortgage upon his automobile and truck; obviously, a diminution or impairment of assents, not the mere aubstitution of one unsecured creditor for another. Meanwhile, the husband was confined to a wheel chair and required more money for his living expenses than if not so afflicted. In contrast, in the instant case the borrowing, though it had a bearing upon respondent's ability to pay the amount of the award, did not, as we have seen, show that respondent's financial ability had changed since the rendition of the divorce decree.

It happens that there are two orders here involved, an order entered in the minutes on May 20 and a formal written and signed order filed May 28, 1954, from each of which a timely appeal was taken. We have discussed the written order and its findings as if that order were fully effective in all respects, because the parties have so treated it. We have also discussed the evidence and respondent's theory at the trial irrespective of and unlimited by the findings expressed in the written order because the minute order disposed of all the issues, contained a sufficient statement of the ultimate facts were findings required, ‘on grounds of change of circumstances and inability of cross-defendant to pay’; see Bradford v. Bradford, 94 Cal.App.2d 921, 924–925, 212 P.2d 59, though it appears that findings were not required, Perez v. Perez, 111 Cal.App.2d 827, 829–830, 245 P.2d 344; Parker v. Parker, 107 Cal.App.2d 215, 217, 236 P.2d 828. Accordingly, we regard the minute order as an appealable order. Because it did not expressly direct that a written order be prepared, signed and filed, see Rule 2(b)(2) of the Rules on Appeal, the date of its entry marked the commencement of the time within which to appeal, concerning the issues which it determined. In such circumstances the findings concerning ultimate and probative facts set forth in the written order have no limiting effect; no more so than when set forth in an opinion or comment of the trial court, as to the latter, see the cases reviewed in Oldis v. La Societe Francaise, 130 Cal.App.2d 461, 471–476, 279 P.2d 184. However, we do not regard the written order as a nullity. It in terms specifically amended the final decree of divorce by striking out certain clauses and inserting others, to express in that form the changes specified in the minute order, a situation quite comparable to that which obtained in Perez v. Perez, supra, 111 Cal.App.2d 827, 829–830, 245 P.2d 344.

The orders appealed from are reversed.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.