Biagi v. Biagi

• Decision Date: 19 April 1965
• Citation: 233 Cal.App.2d 624,43 Cal.Rptr. 707
• Court: California Court of Appeals Court of Appeals
• Parties: Angelo BIAGI, Plaintiff, Cross-Defendant and Respondent, v. Margaret BIAGI, Defendant, Cross-Complainant and Appellant. Civ. 21972.

Page 707

43 Cal.Rptr. 707

233 Cal.App.2d 624

Angelo BIAGI, Plaintiff, Cross-Defendant and Respondent, v. Margaret BIAGI, Defendant, Cross-Complainant and Appellant.

Civ. 21972.

District Court of Appeal, First District, Division 2, California.

April 19, 1965.

Hearing Denied June 16, 1965.

John J. Whelan, Michelson, Whelan & Michelson, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for appellant.

Sparks, Mylod & Lanam, Redwood City, for respondent.

TAYLOR, Justice.

On this appeal by defendant wife from an order entered October 8, 1963, decreasing her alimony payments, the sole contention is that the court lacked jurisdiction to so modify the divorce decree as the property settlement agreement of the parties was an integrated agreement.

The facts are not in dispute. On September 21, 1960, after almost seventeen years of marriage, plaintiff husband obtained an interlocutory decree of divorce from defendant on the ground of extreme cruelty. The interlocutory decree entered on the default of defendant awarded the community property and the custody of the three minor children to plaintiff and a token alimony payment of $1 a month to defendant. Subsequently, defendant was relieved of her default and answered. Thereafter, in April 1961, the parties entered into a property settlement agreement and stipulated that its provisions were to be included in the interlocutory decree and substituted for the previous custody, alimony and support provisions of the decree of September 21, 1960. The property settlement agreement awarded custody of the children to defendant and divided the community property, giving the family home at 2232 Portsmouth to defendant. It further provided that plaintiff was to pay defendant $125 a month alimony, make an $88 a month payment on the family home, and pay all real estate taxes and insurance on the home.

The court's order amending the interlocutory decree to include the provisions of the property settlement agreement was entered on May 15, 1961. The final decree of divorce referring to the provisions of the amended interlocutory decree was entered October 10, 1961. In April 1963, following defendant's commitment to the Agnew State Hospital, the custody and child support provisions were modified to give plaintiff full custody of the children and relieve him of the child support provisions of the decree.

In September 1963, plaintiff filed his motion for a further modification, alleging that he had agreed to the various payments on the Portsmouth property to provide a home for the children; that they were no longer living there and, because of defendant's condition, would not be in the future. After a hearing at which both plaintiff and defendant testified as to their financial condition, the court entered the order of modification here in issue. The order, entered October 8, 1963, provided that as of November 30, 1963, plaintiff was to pay defendant $125 a month for her support and maintenance and to discontinue the payments on the mortgage, taxes and insurance on the Portsmouth home.

Defendant contends that the court was without jurisdiction to enter the order of modification because, in the agreement of the parties, the various payments on the Portsmouth property were integrated into and made a part of the property settlement. Plaintiff, on the other hand, contends that the provision was neither an integrated agreement, nor incorporated into either the interlocutory or final decree of divorce, and that it was, therefore, subject to modification. The question is one of law and we are not bound by the trial court's interpretation (Messenger v. Messenger, 46 Cal.2d 619, 626, 297 P.2d 988).

Plaintiff's contention that the agreement was not incorporated into the decrees or approved by the court is spurious and need not be discussed in detail. The record indicates that the interlocutory decree was amended to conform to the agreement by stipulation of the parties. The agreement by its very terms so provides. Although not specifically incorporated into the decrees by reference, the record supports the inference that the agreement was approved by the court and merged into the final decree (Flynn v. Flynn, 42 Cal.2d 55, 58-59, 265 P.2d 865). In any event, the controlling question of severability is not altered by the incorporation of the agreement into a decree of court or by the merger resulting therefrom. The court looks through the decree to the agreement and determines the rights of the parties in this respect just as though there were no merger (Kelley v. Kelley, 151 Cal.App.2d 228, 233, 311 P.2d 90).

We turn, therefore, to the crucial question as to whether the agreement of April 3, 1961, was integrated. ¹ The question here presented has been frequently and repeatedly discussed by the appellate courts of this state. It is settled that a court may modify the terms of a property settlement agreement that 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 (Roberts v. Roberts, 226 A.C.A. 621, 625, 38 Cal.Rptr. 176).

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. Hence, if in the agreement the provision for support is exchanged for a share of the community property, the agreement constituting an integrated all-embracing 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 whether there 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 (Carson v. Carson, 179 Cal.App.2d 665, 668-669, 4 Cal.Rptr. 38).

Mr. Justice Bray sets forth the following established guidelines in Roberts v. Roberts, supra, 226 A.C.A. at page 626, 38 Cla.Rptr. 176:

1. The fundamental inquiry in determining the character of the agreement is as to the intent of the parties (Clark v. Clark, 198 Cal.App.2d 521, 529, 17 Cal.Rptr. 652; Baker v. Baker, 192 Cal.App.2d 730, 732, 13 Cal.Rptr. 772).

2. The absence in a property settlement agreement of any statement that the support provisions constitute reciprocal consideration for the property provisions is not conclusive if there is other proof of the parties' intent.

3. The fact that support payments may be designated 'alimony,' while entitled to some consideration in an effort to ascertain the intent of the parties, is not controlling.

4. The fact that the provision for support is separately stated from the provision with respect to the division of the community property does not necessarily indicate that the provisions are severable.

5. Where a husband and wife have made provisions for support and maintenance an integral part of their property settlement agreement, the support payments will ordinarily have a dual character. To the extent they are designed to discharge the obligation of support and maintenance, they will ordinarily have an indicia of alimony; but to the extent they represent a division of 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 (DiMarco v. DiMarco, 60 Cal.2d 387, 391-392, 33 Cal.Rptr. 610, 385 P.2d 2).

With the foregoing rules in mind, we turn to the following pertient provisions of the agreement.

'II D. The parties hereto desire, by this agreement, to settle and adjust, as between themselves, their respective property rights, and to provide for the future support of the wife and children.'

The next paragraphs list certain items of community property and divide the community property, awarding certain items to the wife, including the family home at 2232 Portsmouth with its furnishings, and allocating to the husband the 1958 automobile and all other community property not fully set forth.

The alimony provision here in issue reads as follows: 'IX Alimony: A. Husband agreed to pay to wife for her support and maintenance, the sum of One Hundred and Twenty-Five ($125.00) Dollars a alimony. In addition, the husband agrees to pay to the wife the house payment of $88.00 for the house occupied by the wife and children at 2232 Portsmouth, San Mateo, California, and to pay the real estate taxes and insurance on the said house. That this payment of $88.00 for...