Flynn v. Flynn

Decision Date08 January 1954
Citation265 P.2d 865,42 Cal.2d 55
CourtCalifornia Supreme Court
PartiesFLYNN v. FLYNN. L. A. 22305.

Jerry Giesler, Beverly Hills, and Robert E. Ford, Los Angeles, for appellant.

Loeb & Loeb, Herman F. Selvin and Harry L. Gershon, Los Angeles, for respondent.

TRAYNOR, Justice.

On October 11, 1941, plaintiff Liliane Carre Flynn and her husband, defendant Errol Flynn, executed a separation agreement providing for a division of their community property and the support and maintenance of plaintiff and the minor child of the parties. The agreement also provided that in any action for divorce brought by either party 'this agreement may be approved by (the) court and that the terms and provisions hereof may be made and become a part of and incorporated in any decree which may be made by such court, and the parties ordered to comply with the provisions hereof.' In 1942, plaintiff was awarded a divorce from defendant, and the interlocutory decree provided that 'The property settlement agreement between the parties hereto dated October 11, 1941 and received in evidence herein, is hereby ratified, approved and confirmed and the same is hereby specifically incorporated herein and made a part of this decree, and defendant is hereby ordered to make all of the payments provided therein to be paid by him, at the times and in the manner therein provided, and plaintiff and defendant are hereby ordered to comply in all respects with each and all of the terms and provisions of said agreement and to perform all their obligations thereunder as therein provided.' The final judgment incorporated the foregoing provision of the interlocutory decree by reference.

In 1950 defendant petitioned the court to order a reduction in the monthly payments provided in the agreement on the ground of changed circumstances. In October, 1951, the court entered its order denying defendant's motion on the ground that it lacked jurisdiction to modify the interlocutory decree because the property settlement agreement was incorporated by reference only. Defendant has appealed.

Defendant contends that the quoted provision of the interlocutory decree merged the agreement into the decree and that therefore the court had continuing jurisdiction under section 139 of the Civil Code to modify the provisions for support and maintenance. Plaintiff contends, on the other hand, that since the agreement was incorporated by reference only, a merger did not occur, and that in any event modification was precluded by the terms of the agreement.

Merger is the substitution of rights and duties under the judgment or the decree for those under the agreement or cause of action sued upon. See, Restatement, Judgments, § 47, comment a; Hough v. Hough, 26 Cal.2d 605, 610, 160 P.2d 15; Timm v. McCartney, 30 Cal.App.2d 241, 248, 85 P.2d 920. The question as to what extent, if any, a merger has occurred, when a separation agreement has been presented to the court in a divorce action, arises in various situations. Thus, it may be necessary to determine whether or not contempt will lie to enforce the agreement, whether or not other judgment remedies, such as execution or a suit on the judgment, are available, whether or not an action may still be maintained on the agreement itself, and whether or not there is an order of the court that may be modified under the provisions of section 139 of the Civil Code.

In any of these situations it is first necessary to determine whether the parties and the court intended a merger. If the agreement is expressly set out in the decree, and the court orders that it be performed, it is clear that a merger is intended. Plummer v. Superior Court, 20 Cal.2d 158, 165, 124 P.2d 5; Lazar v. Superior Court, 16 Cal.2d 617, 620, 107 P.2d 249. On the other hand, the parties may intend only to have the validity of the agreement established, and not to have it become a part of the decree enforceable as such. See, Plummer v. Superior Court, 20 Cal.2d 158, 164, 124 P.2d 5; Howarth v. Howarth, 81 Cal.App.2d 266, 272, 183 P.2d 670; Baxter v. Baxter, 3 Cal.App.2d 676, 685, 40 P.2d 536; Schnerr v. Schnerr, 128 Cal.App. 363, 368, 17 P.2d 749. Whether or not a merger is intended, the agreement may be incorporated into the decree either expressly or by reference. If a merger is not intended, the purpose of incorporation will be only to identify the agreement so as to render its validity res judicata in any subsequent action based upon it. Howarth v. Howarth, 81 Cal.App.2d 266, 272, 183 P.2d 670; Baxter v. Baxter, 3 Cal.App.2d 676, 685, 40 P.2d 536; see, Queen v. Queen, 44 Cal.App.2d 475, 479, 482, 112 P.2d 755. If a merger is intended, the purpose of incorporation is, of course, to make the agreement an operative part of the decree. In the absence of an express order to perform all or part of the agreement, it may be difficult to determine whether or not a merger was intended. See, Plummer v. Superior Court, 20 Cal.2d 158, 165, 124 P.2d 5; Lazar v. Superior Court, 16 Cal.2d 617, 620, 107 P.2d 249; 1 Armstrong, California Family Law, pp. 423-427; cf., Kent v. Superior Court, 106 Cal.App.2d 593, 595-596, 235 P.2d 420; Young v. Superior Court, 105 Cal.App.2d 65, 66-67, 233 P.2d 39; Shogren v. Superior Court, 93 Cal.App.2d 356, 364, 209 P.2d 108. In the present case, however, there can be no doubt as to the intent of the parties and the court that a merger should occur. Thus, the decree provided that the agreement 'is hereby specifically incorporated herein and made a part of this decree and defendant is hereby ordered to make all of the payments provided therein to be paid by him. * * *'

Once it is determined that a merger was intended, it is necessary to decide whether the decree has the requisite formalities to permit its enforcement in place of the agreement it was intended to supersede. It is settled that a document may be incorporated either expressly or by apt reference into a judgment or decree so as to make it an operative part of the order of the court. Federal Farm Mtg. Corp. v. Sandberg, 35 Cal.2d 1, 3, 215 P.2d 721; Title Ins., etc., Co. v. Miller & Lux., 183 Cal. 71, 89, 90, 190 P. 433; Horton v. Winbigler, 175 Cal. 149, 158-159, 165 P. 423; Hogue v. Fanning, 73 Cal. 54, 57, 14 P. 560; Kelly v. McKibben, 54 Cal. 192, 193-194; Kittle v. Lang, 107 Cal.App.2d 604, 612, 237 P.2d 673; Petry v. Superior Court, 46 Cal.App.2d 756, 760, 116 P.2d 954; Ex parte Weiler, 106 Cal.App. 485, 488, 289 P. 645. Plaintiff contends, however, that a document may not effectively be incorporated by reference unless it is part of the permanent records of the court. She points out that since in this case the agreement was merely introduced in evidence as an exhibit, it could be withdrawn or destroyed, and that therefore interested parties could not by searching the records of the court 'construct a complete picture of the rights and obligations of the parties.' See, Price v. Price, 85 Cal.App.2d 732, 735, 194 P.2d 101. These considerations may justify modifying the interlocutory decree on appeal to require that the agreement be attached to the decree. We do not believe, however, that they are sufficient to require us to hold that the decree, now final, is insufficient to effect its clearly stated intent.

It is unnecessary to decide whether the fact that the agreement was incorporated by reference only prevents its enforcement by contempt proceedings. See, Shogren v. Superior Court, 93 Cal.App.2d 356, 364, 209 P.2d 108; cf., City of Vernon v. Superior Court, 38 Cal.2d 509, 513-514, 241 P.2d 243. Greater certainty and clarity may be required to support such proceedings than are necessary to support other judgment remedies or establish the agreement as part of the order of the court for modification purposes. See, Plummer v. Superior Court, 20 Cal.2d 158, 164-165, 124 P.2d 5; 39 Calif.L.Rev. 250, 252. Moreover, we are not here concerned with the rights of third parties who may have dealt with plaintiff or defendant with respect to the specific property covered by the agreement in ignorance of its terms. We are concerned only with the provisions of the agreement providing for monthly payments in litigation between the parties themselves. Under these circumstances, the necessity of referring to an extrinsic document presents no insuperable barrier to giving effect to the decree, as is demonstrated by the many cases where the court in modification proceedings has taken extrinsic evidence to determine whether the provision for monthly payments was one for alimony subject to modification or part of a property settlement not subject to modification. See, e. g., Tuttle v. Tuttle, 38 Cal.2d 419, 420-422, 240 P.2d 587; Codorniz v. Codorniz, 34 Cal.2d 811, 815, 215 P.2d 32. Thus, in cases in which it is difficult or impossible accurately to determine from the permanent records of the court alone the intended character of the payments involved, courts do not hesitate to consider all of the admissible extrinsic evidence correctly to interpret their decrees. Certainly no greater difficulties are presented by permitting reference to an extrinsic document to give effect to the clearly expressed intent of the decree. Thus in this case, the decree may be given its intended effect by referring to an adequately identified document, and the fact that the document is not a part of the permanent records of the court does not vitiate the decree. Goatman v. Fuller, 191 Cal. 245, 251, 216 P. 35; De Sepulveda v. Baugh, 74 Cal. 468, 474, 16 P. 223; Kittle v. Lang, 107 Cal.App.2d 604, 612, 237 P.2d 673; McLean v. Ladewig, 2 Cal.App.2d 21, 25-26, 37 P.2d 502; see also, Newport v. Hatton, 195 Cal. 132, 156, 231 P. 987; Rosenthal v. Matthews, 100 Cal. 81, 83, 34 P. 624. Price v. Price, 85 Cal.App.2d 732, 194 P.2d 101, is contrary to the foregoing authorities and is disapproved.

An examination of the property settlement incorporated by reference in the interlocutory decree makes...

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