Herda v. Herda

308 P.2d 705, 48 Cal. 2d 228, 1957 Cal. LEXIS 178

Opinions

TRAYNOR, J.

Plaintiff and defendant were married in 1925 and separated in 1937. On March 1, 1938, they executed a property settlement agreement. It recited that owing to disputes and differences between them the parties had agreed to live separate and apart and that it was their “mutual wish and desire . . . that a full and final adjustment of all their property rights, interests and claims be had, settled and determined by said parties in this Agreement, including custody and maintenance of the [two] minor children of said parties.” It provided:

“Now Therefore, it is agreed in consideration of the mutual promises, agreements, and covenants contained herein, it is covenanted, agreed, and promised by each party hereto, to and with the other party hereto, as follows:

“First: That, except as hereinafter specified, each party hereto is hereby released and absolved from any and all obligations and liabilities for the future acts and duties of the other, and that each of said parties hereby releases the other from any and all liabilities, debts or obligations of any kind or character incurred by the other from and after this date, and from any and all claims and demands, including all claims of either party upon the other for support and maintenance as wife or husband or otherwise, it being understood that this instrument is intended to settle the rights of the parties hereto in all respects, except as hereinafter provided. . . .

“Fifth: [Plaintiff] does and shall accept the provisions herein made for her in full satisfaction of her right to the community property of the respective parties hereto, and in full satisfaction of her right to support and maintenance, and for the support and maintenance of said minor children as herein provided.”

Provisions were then made for the division of the property. Plaintiff received household personal property and defendant received an automobile. A life insurance policy on defendant’s life was assigned to plaintiff and defendant agreed to keep the policy in force. It was further agreed that plaintiff should have custody of the minor children and be entitled to take them out of the state.

Paragraph eight provided that “The husband agrees in consideration of the premises and mutual covenants and agreements herein contained to pay to the wife the sum of Two Hundred Fifty Dollars ($250.00) per month as and for the support and maintenance of herself and the minor children of said parties, said payments to commence on March 1, 1938 and to continue monthly thereafter on the first (1st) day of each and every month thereafter.” It also provided that defendant should pay certain debts and plaintiff’s moving expenses should she decide to leave the state.

On March 18, 1938, plaintiff filed an action for divorce on the grounds of extreme cruelty. She attached a copy of the agreement to the complaint and prayed that it be approved and made a part of the decree by reference. On April 18th she secured an interlocutory decree of divorce, which approved the agreement and incorporated it in its entirety by reference. It also provided that “It Is Further Ordered, Adjudged and Decreed that defendant be, and he hereby is, required to pay to plaintiff herein, as and for her support and the support, care and education of the minor children of said parties, the sum of Two Hundred Fifty Dollars ($250.00) per month, which said payments to commence March 1, 1938, and continue monthly hereafter on the 1st day of each and every month.”

A final decree of divorce was entered in 1939, and plaintiff remarried in 1943. In 1944 defendant moved to have the payments reduced on the grounds that plaintiff had remarried and that one of the children was about to enter the armed services, but his motion was denied. In 1954 he moved to have the payments terminated on the ground that plaintiff had remarried and both the children had reached their majority. Plaintiff moved for attorney’s fees to resist defendant’s motion, and following a hearing the court ordered that the interlocutory and final decrees “be modified by terminating all payments for the support of the plaintiff and for the support, care and education of the minor children of the parties hereto forthwith.” It also ordered that no counsel fees be allowed for plaintiff’s counsel. Plaintiff appeals.

She contends that the provision for monthly payments was an integral and inseparable part of the property settlement agreement of the parties and that therefore the amount of the payments attributable to her cannot be reduced because of her remarriage. She also contends that the order denying modification in 1944 is res judicata in her favor. Defendant contends, however, that the provision for monthly payments was a provision for alimony subject to section 139 of the Civil Code and that even if it constitutes an integral and inseparable part of the property settlement agreement, his obligations thereunder terminated after plaintiff remarried and the children reached their majority. He also contends that the 1944 order is not res judicata on the ground that it may have been based on continuing need of the full amount for the support, care, and education of the children, who were then still minors.

In Messenger v. Messenger, 46 Cal.2d 619, 628 [297 P.2d 988], we held that when “the parties have clearly expressed their ‘purpose of fixing and adjusting their personal and property rights, ’ have provided that the provision for alimony is ‘for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature,’ and the wife has waived ‘all right to future maintenance and support . . . , except as herein otherwise expressly provided, ’ the conclusion is inescapable that they have made the provisions for support and maintenance an integral and inseparable part of their property settlement agreement. With such conclusive evidence of integration, the provisions for support and maintenance or alimony would be subject to modification only if the parties expressly so provided.” (Accord: Anderson v. Mart, 47 Cal.2d 274, 279 [303 P.2d 539].) It is clear from the provisions of the agreement quoted above, that the agreement in the present case falls squarely within the foregoing rule. The parties stated their intention to settle both their property and support and maintenance rights, and the fact that the amount of existing community property was small and the amount that might otherwise accrue before the termination of the marriage was speculative, in no way detracts from their clearly expressed intention, as between themselves, to fix and determine the amount of the payments thereafter. Similarly, it is not significant that the amount agreed upon was the same amount defendant had been paying plaintiff following their separation but before the agreement was executed. In the absence of the agreement, that amount might or might not have been accepted by the court as appropriate for alimony and child support and it could have been modified in the event of changed circumstances. The parties were entitled to agree to an amount that could not be decreased during the minority of the children or increased unless the welfare of the children so required. (See Dexter v. Dexter, 42 Cal.2d 36, 43 [265 P.2d 873]; Messenger v. Messenger, supra, 46 Cal.2d 619, 627-628; Anderson v. Mart, supra, 47 Cal.2d 274, 281.)

The question remains whether the agreement may properly be interpreted as providing for payments for plaintiff’s support following her remarriage. In Anderson v. Mart, supra, 47 Cal.2d 274, 280, we pointed out that in the case of integrated agreements executed and incorporated in decrees entered before the 1951 amendment to section 139, payments pursuant thereto do “not terminate on the death of the husband or the remarriage of the wife unless the agreement so provided. [Citations.] ” (See also Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 427 [270 P.2d 1036].) In the present case there is no express provision that the payments attributable to plaintiff’s support should terminate on her remarriage. There is also, however, no express provision that they should continue until her death. Under these circumstances we have concluded that the insignificant amount of the community property involved in the agreement justifies the conclusion that by necessary implication the payments attributable to plaintiff's support should terminate on her remarriage just as the payments attributable to the support of the children terminate on their reaching their majority.

In Dexter v. Dexter, 42 Cal.2d 36, 41-42 [265 P.2d 873], the court stated that when “the parties have made the provision for support and maintenance an integral part of their property settlement agreement, the monthly payments will ordinarily have a dual character. To the extent that they are designed to discharge the obligation of support and maintenance they will ordinarily reflect the characteristics of that obligation and thus have the indicia of alimony. [Citations.] On the other hand, to the extent that they represent a division of the community property itself, or constitute an inseparable part of the consideration for the property settlement, they are not alimony, and accordingly cannot be modified without changing the terms of the property settlement agreement of the parties. ’ ’ It was therefore held in the Dexter case that a provision that the payments should terminate on the remarriage of the wife did not indicate that the monthly payments provided in an integrated agreement were for alimony. It is thus clear that the conclusion that the payments should so terminate, based either on an express provision to that effect or inferred from the provisions of the agreement as a whole, does not conflict with the conclusion that it is an integrated bargain and that the payments are not otherwise subject to modification. Since the agreement in the present ease dealt primarily with support rights and the payments were described as for support and maintenance, it would be unreasonable to conclude that the agreement contemplated that the payments should continue for plaintiff's benefit after the obligation to support the children had terminated (see Anderson v. Mart, supra, 47 Cal.2d 274, 283, and cases cited) and the obligation of plaintiff’s support had been assumed by her second husband. Harnden v. Harnden, 102 Cal.App.2d 209 [227 P.2d 51], Lane v. Bradley, 124 Cal.App.2d 661 [268 P.2d 1092], and Taliaferro v. Taliaferro, 125 Cal.App.2d 419 [270 P.2d 1036], are not contrary to our conclusion herein since in those cases the agreements either expressly provided when the payments should terminate or involved the settlement of substantial property rights.

At the time of the previous modification proceedings neither child had reached his majority and it cannot be determined from the record whether the trial court’s denial of defendant’s motion to reduce the payments was based on a determination that plaintiff’s remarriage was immaterial or was based on continuing need of the full amount for the support, care, and education of the children. Since the children have now reached their majority, the circumstances have materially changed since the entry of that order, and plaintiff has failed to prove that it was based on a determination of the issue now before us. Accordingly, it is not res judicata. (Hurd v. Albert, 214 Cal. 15, 26 [3 P.2d 545, 76 A.L.R 1348] ; Horton v. Goodenough, 184 Cal. 451, 460 [194 P. 34] ; Emerson v. Yosemite Gold Min. etc. Co., 149 Cal. 50, 57 [85 P. 122] ; Estate of Miller, 104 Cal.App.2d 1, 18 [230 P.2d 667].)

Paragraph ten of the agreement provides in part that defendant agrees to “pay and indemnify the wife for all expenses, costs and attorney’s fees in defending any suit, motion or proceeding brought by the husband or anyone in his behalf in any manner affecting this Agreement, and the wife’s right thereto in any respect whatsoever.” Since this provision does not make plaintiff’s right to attorney’s fees dependent on her inability to pay them, the trial court erred in denying her prayer therefor on the ground that she had not shown such inability.

The order is reversed insofar as it denies plaintiff’s motion for an award of attorney’s fees. In all other respects it is affirmed.

Gibson, C. J., Spence, J., and McComb, J., concurred.