Beckett v. Beckett

• Decision Date: 18 April 1969
• Citation: 77 Cal.Rptr. 134,272 Cal.App.2d 70
• Court: California Court of Appeals Court of Appeals
• Parties: Julianne Kemper BECKETT, Plaintiff and Respondent, v. William Sutherland BECKETT, Defendant and Appellant. Civ. 32720.

Page 134

77 Cal.Rptr. 134

272 Cal.App.2d 70

Julianne Kemper BECKETT, Plaintiff and Respondent, v. William Sutherland BECKETT, Defendant and Appellant.

Civ. 32720.

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

April 18, 1969.

Rehearing Denied May 6, 1969.

Hearing Denied June 11, 1969.

Michael B. Montgomery, Los Angeles, for defendant and appellant.

Fine & Pope, Los Angeles, for plaintiff and respondent.

SCHWEITZER, Associate Justice.

Defendant husband appeals from order quashing writ of execution for monies allegedly due him for support and maintenance, pursuant to a provision of a property settlement and separation agreement, set forth in an interlocutory judgment of divorce and embodied in the final judgment of divorce. Plaintiff wife made all payments until defendant husband remarried and has refused to make payments thereafter, notwithstanding the annulment of defendant's remarriage by his second wife.

The parties hereto were married in 1948, separated in January 1957 and on April 19, 1957 entered into a property settlement and separation agreement, prepared by their respective attorneys. The agreement listed their separate property, set forth. a division of community and joint tenancy property, provided for giving custody of the three minor children to the wife, and provided for support and maintenance payments by the wife from her separate property to the husband in the sum of $1200 per month, commencing May 1, 1957 and 'continuing monthly thereafter for the life of the Husband, but not to exceed a period of ten (10) years and six (6) months.'

Shortly thereafter the wife filed suit for divorce. Following a default hearing, she received an interlocutory judgment of divorce on the ground of extreme mental cruelty. The judgment granted her custody of the minor children, ordered her to make the support and maintenance payments to defendant husband as provided by the agreement, and approved the agreement in its entirety. The custody and support and maintenance provisions were set forth in the decree. The agreement was not incorporated into the decree. A final 1958, embodying the custody and support 1958, embdying the custody and support provisions of the interlocutory judgment. Neither judgment has been modified with respect to the support provisions.

On April 28, 1963 the defendant husband remarried. Plaintiff wife has refused ever since to make payments to him as provided by the agreement and the judgments. As of the date of his remarriage, plaintiff was not in default. On March 26, 1965 defendant's second wife obtained a decree of annulment of her marriage to him on the ground of fraud.

On March 2, 1967 defendant had a writ of execution issued against plaintiff, covering the support and maintenance payments that allegedly were due him from May 1, 1963 to the date of the writ. Plaintiff moved to quash and recall the writ on the ground that her alimony obligation was terminated by his remarriage on April 28, 1963. Following a hearing the court concluded: that the agreement was an integrated property settlement agreement; that the support and maintenance provisions 'are true support and maintenance provisions and are not part of the disposition of the property rights of the parties'; that the agreement does not express any intent that the support and maintenance provisions are to continue subsequent to remarriage of defendant; that the support and maintenance provisions were merged into the interlocutory and final judgments of divorce; that defendant's second marriage was voidable; that the support and maintenance obligations of plaintiff terminated as of the date of defendant's remarriage, April 28, 1963, pursuant to the provisions of section 139, Civil Code; and that the support and maintenance provisions have been fully satisfied. The court ordered that the writ of execution be quashed and vacated.

Section 139 of the Civil Code provides in part: 'Except as otherwise agreed by the parties in writing, the obligation of any party in any decree, judgment or order for the support and maintenance of the other party shall terminate * * * upon the remarriage of the other party.' A property settlement agreement is subject to the provisions of section 139 of the Civil Code. (Hilton v. McNitt, 49 Cal.2d 79, 81--83, 315 P.2d 1.) The agreement in this case is silent as to the subject of remarriage of either party.

Defendant contends that the evidence of his remarriage and subsequent annulment was insufficient for the trial court to conclude that the support obligations of the agreement had been terminated. He concedes that a marriage annulled on the ground of fraud is voidable, not void (see Turner v. Turner, 167 Cal.App.2d 636, 641, 334 P.2d 1011) and recognizes the holdings of Sefton v. Sefton, 45 Cal.2d 872, 291 P.2d 439, and Husted v. Husted, 222 Cal.App.2d 50, 35 Cal.Rptr. 698, that, under section 139 of the Civil Code, a voidable marriage terminated the right to alimony and that such right did not re-arise on the annulment of such a marriage. however, defendant points out that Justice Shenk in Sefton stated that after the remarriage the former spouse could properly assume, in accordance with section 139, that the obligation to pay alimony had ceased, and based on this assumption would be entitled to recommit assets previously chargeable to alimony to other purposes. 'Under such circumstances it would be improper to reinstate * * * (the support provisions).' (Italics ours.) (Sefton, supra, at p. 877, 291 P.2d at 442.) Defendant argues that since plaintiff did not offer any evidence to show that she had changed her position to her detriment, she was therefore not entitled to have her obligation terminated pursuant to section 139.

We do not agree with defendant's contention. It appears to us that Justice Shenk made the reference to a possible hardship stitution only as illustrative of one of the results that might occur if a contrary decision were reached. Our opinion is fortified by the dissenting opinion of Justice Edmonds wherein he argued that the trial judge should be given an area of discretion, a position in accord with defendant's contention. There was no need for this statement by Justice Edmonds if the majority were not of the opinion that section 139 was self-executing. It is likewise significant that the need for a showing of a change of circumstances was not mentioned in the later opinion of Husted v. Husted, Supra, 222 Cal.App.2d 50, 35 Cal.Rptr. 698. Even if there be merit to defendant's contention, it is questionable whether the courts would apply the principle to the case of one who was not the innocent party in the voidable remarriage. It was his fraud that led to the annulment.

Defendant also cites Cottam v. City of Los Angeles, 184 Cal.App.2d 523, 7 Cal.Rptr. 734, 85 A.L.R.2d 238, wherein the pension of the widow of a deceased police officer was restored following the annulment of her second marriage on the ground of fraud by her second husband. We do not agree that Cottam presents a comparable situation. The case involved the construction and application of the city's charter provisions. In doing so the court stated that pension legislation must be liberally construed and applied to the end that its beneficent results may be achieved. Further, it is noted in Cottam, supra, that the applicant was the innocent party in the second marriage.

Defendant next contends that the support provision in the agreement was integrated into and made a part of the property settlement, and hence may not be modified. 'An agreement is integrated if the parties have agreed that the provisions relating to division of property and the provisions relating to support constitute reciprocal consideration. The support provisions are then necessarily part and parcel of a division of property. Such an agreement would be destroyed by subsequent modification of a support order based thereon, without the consent of the parties.' (Plumer v. Plumer, 48 Cal.2d 820, 824, 313 P.2d 549, 552.)

The question of the severability of the support and property division provisions was discussed by Justice Tobriner in Carson v. Carson, 179 Cal.App.2d 665, 668--669, 4 Cal.Rptr. 38, 40: 'A court may modify the terms of a property settlement agreement which has been incorporated into a divorce decree if it finds the provisions of the agreement as to the disposition of the property and as to alimony to be severable. * * * Since the law fixes the extent of the obligation of support, that power of the court continues even if the parties themselves have agreed upon the amount of alimony and included it, among other and separable provisions, in a property agreement. Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15; Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265.

'On the other hand, the court has no power to change the terms of a property settlement agreement that relates only to the division of the property. 16 Cal.Jur.2d 510, 511. Hence if in the agreement the provision for support is exchanged for a share of the community property, the agreement constituting an integrated allembracing bargain, the court cannot modify its terms. * * *

'Thus the courts have been concerned with whether the agreement is in reality a settlement of property rights which includes as an integral part a support provision, or is nothing more than a separable support provision contained within the agreement. Only in the latter instance do the courts, in the exercise of their long recognized authority and responsibility arising from the relationship of the parties, retain the power to determine the support, and to modify, if necessary, the settled amount.'

To determine whether the property and support provisions of the agreement 'constitute reciprocal consideration,' we turn to the pertinent provisions of the agreement.

Paragraph I is an introductory paragraph, subparagraph (e) thereof providing: 'The parties hereto desire by this agreement to...