Garrett v. Garrett

• Decision Date: 31 January 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Georgia Bayless GARRETT, Plaintiff and Respondent, v. Dan L. GARRETT, Jr., Defendant and Appellant. Civ. 23910.

Page 580

65 Cal.Rptr. 580

258 Cal.App.2d 407

Georgia Bayless GARRETT, Plaintiff and Respondent, v. Dan L. GARRETT, Jr., Defendant and Appellant.

Civ. 23910.

Court of Appeal, First District, Division 1, California.

Jan. 31, 1968.

Frederick E. Watson, San Francisco, for appellant.

Louis Francis, San Mateo, for respondent.

MOLINARI, Presiding Justice.

Plaintiff wife and defendant husband were divorced in 1955. On April 22, 1964, the court ordered defendant to show case why defendant should not be adjudged guilty of contempt for noncompliance with the alimony and child support provisions of the interlocutory decree and final judgment of divorce. ¹ The court declined to hold defendant in contempt, but ordered him to pay plaintiff an arrearage of $5,700, attorney's fees of $1,250, and $10 costs. Defendant appeals. ²

Contentions

Defendant contends that the parties, on February 18, 1954, entered into a court-approved integrated property settlement agreement depriving the court of jurisdiction to enforce the support provisions of the decree by means of contempt proceedings. He also contends that since the agreement of the parties did not allow plaintiff attorney's fees, the court was without power to modify the agreement by awarding plaintiff attorney's fees and costs in the instant proceeding.

Facts

Plaintiff filed her complaint for divorce on February 15, 1954, alleging extreme cruelty and praying for a divorce decree, custody of the two minor children of the marriage, reasonable support and maintenance for plaintiff and her children, and an equitable division of the community property. ³ On February 18, 1954, the parties entered into a property settlement agreement prepared by plaintiff's attorney, Paul Schumann, which awarded plaintiff the family house, all furniture and household effects, and an automobile; provided that defendant maintained life insurance policies on his life designating the two minor children as irrevocable beneficiaries; awarded defendant, who is an attorney, his office equipment and law books; and awarded all other property, community and separate, to the party having possession or control of the same. The agreement further provided that plaintiff should have custody of the children, subject to defendant's reasonable visitation rights; that defendant should pay $100 per month for the support of each of the children and $100 per month for the support of plaintiff until her death or remarriage. The agreement also adjusted the obligations of the parties, and provided in paragraph XI: 'Except as herein provided, each of the parties hereby releases and discharges the other from all claims of every kind or character and all liabilities arising from the marital status, and each party hereto waives the right to participate in the estate of the other by reason of the marital relationship.'

The parties prefaced the agreement with a recital that they desired 'to settle and adjust for all time all of their property rights and claims and all other rights and liabilities and all reciprocal rights in and to all community property of every kind and nature now owned or possessed by them, * * *' and that they desired 'to settle all rights of Wife to attorney's fees, support and maintenance for wife and support and maintenance for the minor children of the parties, court costs, as well as every other matter of dispute which may or can arise in the future between the said parties with relation to said financial and property rights, past, present or future, including any rights of wife to support or maintenance for herself or the minor children of the parties hereto, * * *'

Defendant did not appear at the trial of the divorce action. ⁴ Only plaintiff and her corroborating witness testified. The hearing book a few minutes and there was no evidence concerning plaintiff's financial needs or the existence or extent of the parties' property.

Schumann testified at the contempt proceedings that he advised the court at the divorce hearing that the parties had entered into a property settlement agreement but did not give the agreement itself to the court to read or look at because he wished the court to retain jurisdiction to enforce through contempt the support provisions; and that the judge asked the plaintiff, who was then on the stand, if she was satisfied, to which plaintiff responded in the affirmative. According to Schumann the trial judge, by his question, meant whether plaintiff was satisfied 'in the overall as far as money is concerned.' Schumann also testified that he had drafted the agreement according to the wishes of both plaintiff and defendant and that he was satisfied that the agreement was fair and equitable.

Schumann had agreed with defendant before the divorce hearing that defendant would allow the matter to go by default and that the support provisions in the decree would be the same as those in the property settlement agreement. The interlocutory decree of divorce contains precisely the same provisions as does the property settlement agreement concerning child custody, child support, and support for plaintiff, except that the degreement characterizes the latter payments as 'support and maintenance' whereas the decree calls them 'alimony and support.' The final judgment of divorce incorporates the interlocutory degree by reference.

Is the Property Settlement Agreement an Integrated Agreement?

Yes. When there is no conflicting extrinsic evidence, the question whether a property settlement agreement is integrated is one of law. (Messenger v. Messenger, 46 Cal.2d 619, 626, 297 P.2d 988; Fox v. Fox, 42 Cal.2d 49, 52--53, 265 P.2d 881; Biagi v. Biagi, 233 Cal.App.2d 624, 628, 43 Cal.Rptr. 707.) The intent of the parties, as manifested in the written agreement, controls. (Biagi v. Biagi, supra, at p. 629, 43 Cal.Rptr. 707; Roberts v. Roberts, 226 Cal.App.2d 507, 512, 38 Cal.Rptr. 176.)

The parties explicitly intended this agreement 'to settle and adjust for all time' all of their rights and liabilities incident to the destruction of the marriage. This fact is evidenced by the recitals in the preface and by the all-encompassing nature of the agreement, which covers all of the property of the parties, all of their debts, child custody and support, and support for the wife. The 'sense of finality' (Ebert v. Ebert, 185 Cal.App.2d 293, 299, 8 Cal.Rptr. 203.) Arising from the parties' phrase 'adjust for all time' is strong evidence of their intent to settle all of their rights once and for all. (See Ebert v. Ebert, supra.) Also significant is the fact that they expressly released and discharged each other from 'all claims of every kind or character and all liabilities arising from the marital status.' (See DiMarco v. DiMarco, 60 Cal.2d 387, 392, 33 Cal.Rptr. 610, 385 P.2d 2.) The fact that the payments for support for the wife were to terminate on her death or remarriage does not require a finding of severability (Ebert v. Ebert, 185 Cal.App.2d 293, 299--300, 8 Cal.Rptr. 203), nor does the characterization of the payments as 'alimony' in the divorce decree (Messenger v. Messenger, supra, 46 Cal.2d at p. 624, 297 P.2d 988; Fox v. Fox, supra, 42 Cal.2d at p. 53, 265 P.2d 881; Biagi v. Biagi, supra, 233 Cal.App.2d at p. 629, 43 Cal.Rptr. 707), nor the separation of support and property division provisions (Newhall v. Newhall, 157 Cal.App.2d 786, 795, 321 P.2d 818).

The parties did not expressly state that the support and property provisions constituted reciprocal consideration for each other, but did state in the recitals that 'in consideration of the premises and of the mutual covenants and agreements hereof, said parties hereto mutually understand and agree as follows: * * *' This language is similar to that used in the agreement in Campbell v. Campbell, 178 Cal.App.2d 77, 80--82, 2 Cal.Rptr. 710, 712, which holds an agreement to be integrated that stated that all its provisions were made "in consideration of the mutual covenants and agreements hereinafter contained.' * * *'

As stated in Biagi v. Biagi, supra, 233 Cal.App.2d at page 629, 43 Cal.Rptr. at page 710, '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, * * * contained within the agreement.' Here it is plain from the four corners of the agreement that the parties intended a final and complete adjustment of all of their property and personal rights incident to the marital relationship. The property settlement agreement was therefore an integrated agreement and has all of the legal characteristics of such an agreement.

Is there a Merger of the Property Settlement Agreement into the Judgment of Divorce?

No. Flynn v. Flynn, 42 Cal.2d 55, 58, 265 P.2d 865, 866, states the pertinent principles applicable to the merger of a property settlement agreement into a decree of divorce: '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. (Citations.) * * * (I)t 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. (Citations.) 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. (Citations.) 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. (Citations.) If a merger is intended, the purpose of incorporation is, of course, to make the agreement an operative part of the decree.'

The Flynn case recognizes that where, as here,...