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

Irmgard Dawson LEVITT, Plaintiff and Appellant, v. Gene LEVITT, Defendant and Respondent.

Civ. 27001.

Decided: June 05, 1964

Don Lake and Val Linton, Los Angeles, for appellant. Zagon, Aaron & Schiff, Harold E. Aaron, Beverly Hills, for respondent.

The appeal is by plaintiff from portions of a minute order entered June 20, 1962, modifying the allowance made for plaintiff's support by decree of divorce entered March 8, 1956, as subsequently modified. Under the judgment, as modified, plaintiff, was receiving $500 per month for her support. By the order which is the subject of the appeal defendant was directed to continue payments of $500 a month to January 1, 1963, as of which date the amount was reduced to $1 per year until further order of the court.

Prior to the divorce the parties had entered into a property settlement agreement by which property of unstated values was divided, the husband agreed to pay the wife $400 per month during his lifetime and until the wife died or remarried, $225 per month for the support of Christopher, a child of the parties, and a like sum for the support of James, a child of the wife by a previous marriage. There was also a provision for additional payment by defendant to the wife of 17 1/2% of his net earnings and a like sum for the support of the two children. It was provided that the payments would be reduced for any year in which the husband's income fell below $18,000. The agreement was approved by the court, the terms and conditions of the same were set out in the decree, and the parties were ordered to comply therewith. November 27, 1956, the decree was modified pursuant to stipulation; support for the wife was increased from $400 to $500 per month; provision for the support of James was eliminated; the allowance for the support of Christopher was increased from $225 to $250 per month and the provision for payment of 17 1/2% of defendant's carnings for the wife and a like amount for the children was eliminated. The stipulation upon which the modifying order was based contained the following provision: ‘VII. It is understood and agreed that defendant reserves any rights he may presently have or may obtain in the future to seek further modification in the Property Settlement Agreement, Interlocutory Decree and Final Decree hereunder, but Defendant covenants and agrees not to seek any modification or make any collateral attack concerning alimony or child support except in the event of a substantial decrease from Defendant's 1956 income. a. Modification as used hereunder shall include any right Defendant might have to collaterally attack the Judgments hereunder. However, in the event of a successful collateral attack, Defendant agrees that in no event should the payments for support and maintenance for Plaintiff and the minor child, CHRISTOPHER LEVITT, be set below a minimum figure equal to (30%) thirty per cent of Defendant's gross income from all sources and shall increase or decrease thereafter in accordance with an increase or decrease in such gross income at that rate, not to exceed the payments hereunder. * * *’

May 22, 1963, upon application of defendant, plaintiff was ordered to show cause why the decree, as modified, should not be modified further by reducing or terminating the support of plaintiff. Plaintiff filed objections, and also gave notice of a motion to dismiss the order to show cause upon the ground that the decree was not subject to modification; the matters came on for hearing together and the order presently under review was made. Each party filed a declaration and the attorneys made statements in answer to questioning by the court, which were given the effect of testimony. In the hearing it was admitted by defendant that in each year subsequent to 1956 his income had been greater than it was in that year.

Plaintiff contended in the trial court, and contends on appeal, that the property settlement agreement was fully integrated and the decree was not subject to modification by the court except pursuant to agreement of the parties, and makes the further contention that even if the decree was subject to modification, the facts relied upon by defendant were insufficient as a basis for the order that was made. Defendant's contentions, naturally, are to the contrary.

The briefs are devoted almost exclusively to the question whether the decree, based upon the agreement, was modifiable. The agreement was comprehensive and, save in one particular, clearly and unmistakably set forth all the requirements of a fully integrated agreement as they have been repeatedly stated, and were recently summarized in DiMarco v. DiMarco, 60 A.C. 342, 33 Cal.Rptr. 610, 385 P.2d 2. However, the agreement contained the following provision: ‘Husband and Wife, in discharge of Husband's obligation to support and maintain Wife because of their marital and family relationship, hereby agree that Husband, by way of alimony and not as a part of a property settlement, shall pay to Wife for alimony, support, and maintenance so long as Husband is alive and so long as Wife is living and remains unmarried, and shall pay to Wife as and for the support and maintenance of the minor children, as follows: * * *’ Here followed provisions for the payment of $400 per month for the wife and stated sums for the children.

The trial court evidently construed this provision as a statement of the intentions of the parties that the agreement for plaintiff's support was separate and apart from the general provisions of the agreement, was based on a separate consideration, and would render the decree modifiable by the court. It is unnecessary, for reasons to be stated, for us to express an opinion with respect to the proper interpretation of the conflicting provisions.

The facts relied upon by defendant and stated in his declaration as a ground for reduction in the amount of plaintiff's support may be stated briefly: he is a writer and has been employed under contract to furnish material for television programs; he intends to change from contract writing to speculative writing of material for sale, and thus better his condition, and become enabled to provide for the future support of his family; he has remarried and is living with his present wife and their child and two children of hers by a previous marriage; plaintiff is able-bodied, capable of supporting herself, and the support furnished by defendant gives plaintiff an incentive to remain unmarried. Nothing was stated as to defendant's financial worth or present income. It was stated in the declaration of plaintiff that she resides in Germany; under an oral agreement with defendant, Christopher is to spend one-half of each year with her and the other half with his father; this agreement has been complied with for the past three years, and in reliance upon it she has taken a long term lease on a home and has bought an automobile and household furnishings and effects. It was stated by her attorney, and not questioned, that she is dependent upon defendant's payments for her support.

It is unnecessary for us to decide whether the foregoing facts stated in defendant's declaration were sufficient to warrant a reduction of the payments for plaintiff's support. The order must be reversed for an independent reason. In paragraph VII of the agreement, quoted above, defendant agreed not to apply for a modification of the payments for the support of plaintiff or the minor child except in the event of a substantial decrease from his 1956 income. That condition had not arisen. It is not contended by defendant that the agreement was invalid or that he had been excused from complying with it. No reason is stated in the brief of defendant as justification for an order reducing the allowance for plaintiff's support while the income of defendant is not less than it was in 1956, and it seems clear to us that the trial court should have held defendant to his promise. If the time should arrive when his income falls below that of 1956, he will have whatever rights are reserved to him by paragraph VII of the agreement and the decree as modified. We express no opinion with respect to the extent of those rights.

The answer to the determinative question in the case is simple. Defendant must abide by his agreement. The controlling facts of the case do not differ in principle from those considered in Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865. In that case the husband had agreed not to seek a reduction of support payments below $9,000 per year unless his yearly income fell below $90,000. The agreement was incorporated in a decree of divorce. He sought an order reducing the amount of the agreed monthly payments, but at the time of his application his yearly income had not fallen below $90,000. In the trial court his application was denied for that reason, and the order was affirmed. Defendant Levitt is in the same relative position. Regardless of any question as to the sufficiency of the showing of changed conditions, as stated in the declaration of defendant, his application should have been denied upon the ground that he was precluded by his agreement from seeking a modification under the existing conditions.

The order is reversed.

SHINN, Presiding Justice.

FORD and FILES, JJ., concur.

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Docket No: Civ. 27001.

Decided: June 05, 1964

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

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