DiMarco v. DiMarco

• Decision Date: 19 September 1963
• Citation: 385 P.2d 2,60 Cal.2d 387,33 Cal.Rptr. 610
• Court: California Supreme Court
• Parties: , 385 P.2d 2 Dorothy DIMARCO, Plaintiff and Appellant, v. Frank DIMARCO, Defendant and Respondent. S. F. 20978.

Page 610

33 Cal.Rptr. 610

60 Cal.2d 387, 385 P.2d 2

Dorothy DIMARCO, Plaintiff and Appellant, v. Frank DIMARCO, Defendant and Respondent.

S. F. 20978.

Supreme Court of California, In Bank.

Sept. 19, 1963.

Rehearing Denied Oct. 16, 1963.

Rebecca Wells Smith, San Francisco, for plaintiff and appellant.

Garrett & Speier, Dan L. Garrett, Jr., and Henry C. Krivetsky, San Francisco, for defendant and respondent.

McCOMBM Justice.

Plaintiff appeals from (1) an order of the trial court holding that a property settlement agreement in a divorce action, made by plaintiff and defendant, was nonintegrated; and (2) rulings denying plaintiff (a) the right to be furnished with copies of defendant's income tax returns and (b) a judicial determination of the sum to which she became entitled by reason of a provision contained in the property settlement agreement providing for increases in periodic payments; and (c) a writ of execution to compel payment of the amount accrued under a sliding scale provision in the property settlement agreement.

Facts: (i) October 3, 1951, plaintiff and defendant entered into a property settlement agreement providing, among other things, that the parties 'desire to settle all their respective property and other rights'; that plaintiff was to have the physical custody of the two children of the marriage; that plaintiff was to receive all the household furniture; that defendant was to receive the automobile of the parties, together with 'all interest, partnership or otherwise in and to that certain public relations business known as DiMarco-Von Lowenfeldt Associates * * * together with all equipment, accounts receivable and assets of whatever kind of said business.'

Under the agreement defendant agreed 'to pay * * * directly to the wife (plaintiff) until her death or remarriage as and for alimony and support money the sum of $150.00 each month' and $100 per month for the support of the two children. Defendant also agreed to pay the premiums on certain insurance policies and pay other bills and expenses of the parties.

The agreement then recited: 'All monthly payments herein agreed to be made by the husband, (excepting the support for the children and insurance premiums), shall forever cease immediately upon the remarriage of the wife' and 'In the event of an increase from any source in husband's present income of approximately $6,000 annually, net before taxes, then the monthly payments herein provided for * * * shall be increased in direct proportion. * * *'

In order to determine defendant's income, the agreement recited: '(H)usband shall during the term of this agreement keep full and accurated books of account of his business and professional activity and furnish to the wife by mail, immediately following the end of each calendar year hereafter, a certified statement by a Certified Public Accountant, of his annual income, and copies of his respective state and federal income tax returns and declaration of estimated income tax return, and such statement and returns shall be deemed prima facie proof of the income of the husband so far as is required for the purpose of this agreement, subject to the right hereby granted, of the wife on written request to have a Certified Public Accountant of her own choice examine the records and books of account of said Frank DiMarco.'

The agreement concluded by reciting: 'The parties do hereby release each other and relinquish to each other all right of support, alimony or community property rights, including the right to inherit * * * except as herein provided, and do accept this agreement * * * in full settlement of any and all rights arising out of their marriage, except as herein provided * * *. This agreement when executed by both shall be admitted in evidence, incorporated in and made a part of any interlocutory divorce decree which may be entered in the proceedings hereinabove referred to. * * *'

(ii) October 10, 1950, plaintiff filed a complaint for divorce against defendant. charging him with extreme cruelty.

(iii) October 18, 1951, the case came on for trial, and an interlocutory decree of divorce was entered, setting forth that plaintiff was entitled to a divorce at the end of one year on the ground of defendant's extreme cruelty. Under the decree, it was ordered (a) that 'the Property Settlement Agreement dated October 3, 1951, and filed concurrently herein, be and the same is hereby approved and incorporated in and made by reference a part of this decree * * *'; (b) that defendant pay for the support of plaintiff and the minor children the sum of $150 per month for plaintiff and $50 per month for each of the children, as provided in agreement; and (c) that defendant 'do all things agreed to be done by him under the terms of said Property Settlement Agreement.' A right was reserved to modify the provisions of the decree for the support of the children only.

(iv) October 20, 1952, a final decree of divorce was entered, declaring 'that this Court does hereby approve and confirm and make a part of this decree the provisions of that certain Property Settlement Agreement made and entered into between the parties hereto and executed by them on October 3, 1951' and that 'defendant pay as and for the support of the said plaintiff and the said month children, the sum of $150.00 per month for plaintiff, and $50.00 per month for each of said minor children, as provided for in said Property Settlement Agreement, and do all things agreed to be done by him under the terms of said Property Settlement Agreement, reserving to the Court, however, the right to modify hereafter provisions for the support of said minor children.'

(v) November 16, 1960, plaintiff obtained an order to show cause directed to defendant, seeking an order that execution issue to compel payment of amounts she alleged were due under the final decree of divorce, and asking that defendant be ordered to (a) furnish certified statements of his income for the years 1952 through 1960, (b) permit plaintiff to examine income tax records and books of account of defendant for said years, and (c) pay increased installments under the terms of the decree and the property settlement agreement.

(vi) May 1, 1961, the trial court held the property settlement agreement to be non-integrated; ruled that plaintiff was not entitled to inspect defendant's income tax returns; ordered that defendant pay plaintiff, in installments, $1,480 found to be owing in arrearage; and denied further relief.

Questions: First: Was the property settlement agreement between the parties an integrated agreement?

Yes.

(1) An agreement between husband and wife providing that the purpose of the parties is to reach a final settlement of their rights and duties with respect to both property and support, that they intend each provision to be in consideration for each of the other provisions, and that they waive all rights arising out of the marital relationship except those expressly set out in the agreement will be deemed conclusive evidence that an integrated agreement was intended. (Plumer v. Plumer, 48 Cal.2d 820, 825(6), 313 P.2d 549; Messenger v. Messenger, 46 Cal.2d 619, 628(2b, 3b), 297 P.2d 988.)

(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. No such statement appears in the property settlement agreement involved in Plumer v. Plumer, supra. (See also Dexter v. Dexter, 42 Cal.2d 36, 43(9), 265 P.2d 873; Clark v. Clark, 198 Cal. App.2d 521, 531, 17 Cal.Rptr. 652; Grolla v. Grolla, 151 Cal.App.2d 253, 259(10), 311 P.2d 547.)

(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. (Messenger v. Messenger, supra, 46 Cal.2d at p. 625, 297 P.2d 988, 991; Grolla v. Grolla, supra, 151 Cal.App.2d at p. 258(5), 311 P.2d at p. 551.)

(4) The fact that a property settlement agreement looks to the future and is geared for revision upwards does not require an inference of severability. (See Bradley v. Superior Court, 48 Cal.2d 509, 310 P.2d 634; Burr v. Crellin, 159 Cal. App.2d 275, 323 P.2d 830; Arthur v. Arthur, 147, Cal.App.2d 252, 256, 305 P.2d 171.)

(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 the 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. (Dexter v. Dexter, supra, 42 Cal.2d at p. 41(4), 265 P.2d at p. 876.)

Applying the foregoing rules to the present case, it is apparent the the property settlement agreement was an integrated one.

It deals with both rights to marital property and rights to support. In it, the parties have set forth that they had insurmountable differences, contemplated a divorce action, and desired 'to settle all their respective property and other rights.' They have released each other from all claims arising out of the marital relationship except as provided in the agreement. Accordingly, the inference is clear that they intended an integrated agreement. It is unnecessary that the parties expressly recite such an intent when the agreement itself makes the intent clear. (Plumer v. Plumer, supra, 48 Cal.2d at p. 825(8), 313 P.2d at pp. 552-553; Dexter v. Dexter, supra, 42 Cal.2d at p. 41(3), 265 P.2d at p. 876.)

It was pointed out in Messenger v. Messenger, supra, 46 Cal.2d at page 626(3a)...