Herda v. Herda
| Decision Date | 05 October 1956 |
| Docket Number | No. 16849,16849 |
| Citation | 301 P.2d 877 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Claudine HERDA, Plaintiff and Appellant, v. Clarence HERDA, Defendant and Respondent.* |
Henry W. Schaldach, San Francisco, for appellant.
Chas. E. R. Fulcher, Los Angeles, for respondent.
The main question presented on this appeal is whether or not the trial court's interpretation of a contract between spouses at the time of separation and divorce is to be sustained. (A lesser question, relating to allowance of counsel fees, is considered at the end of this opinion.) The agreement, drawn in 1938, provided, among other things, for payment of the sum of $250 to the wife 'as and for the support and maintenance of herself and the minor children of said parties, said payments to commence on March 1, 1938 and to continue monthly thereafter on the first (1st) day of each and every month thereafter.' These provisions, with slight changes in wording, were contained in the divorce decrees, interlocutory and final, and the husband was ordered by the decrees to pay $250 every month for the support of the wife and the children. The agreement as a whole was not copied into the decrees, but reference was made to it as an exhibit attached to the complaint. The trial court construed the agreement and the decrees as imposing an obligation on the husband to pay the stated sum for the support of the wife only until her remarriage. The wife appeals, contending that the sum of $250, as reduced by such amount as should be apportioned for the children, must be paid to her every month without regard to her remarriage.
There is no contention that further support is required for the two children of the parties, for both have attained majority and neither is under any disability. The husband paid the $250 every month until the younger child had attained majority in 1954. One contention of appellant is that because the husband applied for a modification of the amount of support money in 1944 when the older child was about to enter the armed forces and after the wife's remarriage in 1943, and the modification was denied by the court, the matter is res judicata, and it has been determined that the support money is a periodic payment upon a division of community property. However, nothing is before us to show the reasoning of the court when that application was made. The court may have decided that the sum should be paid without reduction for the continuing support of the children, and especially of the younger child, who was then 10 years old. In Meek v. Meek, 51 Cal.App.2d 492, 125 P.2d 117, it was held that the doctrine of res judicata could not apply where prior petitions for reduction of a support order had been denied, but a second child had become of age since the last denial, thus changing the facts sufficiently to prevent application of the doctrine.
We hold that the order based on the earlier application for modification did not determine the question now before us.
It is argued by the wife that the required payment was not in the nature of alimony, but was an inseverable part of an integrated property settlement agreement and was not subject to termination on her remarriage; and by the husband, that the award essentially was alimony, although that term was not used.
The agreement, it is to be observed, does not provide that the payments are to be for the lifetime of the wife, or for a specified time. Not is there an award of a certain sum to be paid at the rate of $250 a month until satisfied. The contract simply states that it is for support, and it is to be paid every month.
In construing the agreement and in determining the nature of the periodic payments, there are basic principles of interpretation to be observed. The cardinal rule of interpretation of contracts is to find the intention of the parties, Civil Code, Section 1636, and in seeking that intention, the object to be attained is the principal factor. In re City and County of San Francisco, 191 Cal. 172, 177, 215 P. 549; Miranda v. Miranda, 81 Cal.App.2d 61, 66, 183 P.2d 61. If a contract is explicit, extrinsic evidence cannot be used to interpret it, but if it is ambiguous, extrinsic evidence is admissible. Tuttle v. Tuttle, 38 Cal.2d 419, 421, 240 P.2d 587. If an issue of fact, such as the intent of the parties to an ambiguous agreement, has been determined by the trial court upon such evidence, the determination, if not unreasonable, will not be disturbed on appeal even though a contrary finding might be equally tenable. Weedon v. Weedon, 92 Cal.App.2d 367, 207 P.2d 78; Pearman v. Pearman, 104 Cal.App.2d 250, 256, 231 P.2d 101.
Applying these basic principles to the cause before us, we believe the trial court's order terminating support for the wife should be affirmed. Extrinsic evidence relating to the history of the settlement and the property of the parties was admitted, not over objection of appellant, but chiefly as presented by her. Although this followed the suggestion of the court that such evidence be produced, still appellant cannot complian (and does not) of its admission, and, in any event, the contract was ambiguous. It sets forth no duration for the payments.
The history of the settlement shows that in 1938, the parties had very little community property to divide. The wife received a heavily encumbered home, its furniture and a life insurance policy. The husband received an automobile. He was earning between $450 and $500 a month. He paid the wife $250, the same amount as appears in the agreement, for the support of the wife and children during the several months preceding the interlocutory decree. These facts may have led the court to conclude in the present proceeding that the periodic payment was intended as support money and was not integrated with a division of property. The agreement was drawn by counsel for appellant, who thus caused the ambiguity to exist. The object herein was to support the wife and the children. For how long? For the children, obviously, until they would become of age, partly because the agreement referred to them, at the time the provision for them was made, as 'the minor children', and partly because the law would not impose the duty of support on the father after the children had attained majority, unless they were ill or infirm. In the same way, it is reasonable to infer that the support for the 'wife', as she was described as such in the agreement, would continue not until death, but until the duty of support would devolve upon another spouse. There is a certain incongruity in interpreting an indefinite contract for support of a wife as requiring a man to continue payments after another has undertaken the duty of support. Although a contract to support a spouse even after remarriage is not against public policy, nevertheless, in interpreting this agreement of uncertain duration, the trial court reasonably weighed the noted incongruity as a factor.
To construe the contract as requiring lifetime payments to the wife would allow her to collect from her former spouse's estate, should he predecease her, the then present value for her life expectancy of that part of the award which might be apportioned to her. Miller v. Superior Court, 9 Cal.2d 733, 735, 72 P.2d 868; Anthony v. Anthony, 94 Cal.App.2d 507, 211 P.2d 331. A clearer expression than was contained in the contract herein should be required in order to make necessary an interpretation which would impose so large a burden.
There remain to be discussed the chief cases cited by appellant relating to: 1. Integrated agreements generally; and 2. agreements which were held to survive remarriage. In the present case, the wife waives all support other than that agreed upon, and the contract recites that the parties intend to settle their rights, and that the wife accepts the support provisions in full satisfaction of her right to community property. These provisions may make the contract unmodificable in that the periodic payments cannot be revised upwards or downwards. Such provisions are to be found in the contracts considered in Ettlinger v. Ettlinger, 3 Cal.2d 172, 44 P.2d 540; Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1; Adams v. Adams, 29 Cal.2d 621, 177 P.2d 265; Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873; Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881; Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865; Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988, and Helvern v. Helvern, 139 Cal.App.2d 819, 294 P.2d 482. In all of those cases, the termination date of payments was expressed (usually, as death or remarriage) and there was no question of ascertaining the intention of the parties in that regard.
The expressions of finality were held, in those cases, to prevent increase or reduction in payments. We do not regard such expressions as necessarily requiring that payments continue for a lifetime where the contract does not that they are to do so. In the absence of contract, the wife would have no right to such support after remarriage, and when this agreement was drawn, section 139 of the Civil Code provided that the husband's duty to support the wife (not only his duty as imposed by a decree of divorce but his general legal duty), ended with the wife's remarriage. Thus, the wife gave up no right to a larger amount of post-marital support for she had none. She could have gained a right to post-marital payment by contract, of course.
We come now to the subject of cases in which remarriage has been held not to terminate support provisions. In Rosson v. Crellin, 90 Cal.App.2d 753, 203 P.2d 841, 842, the contract expressly provided for payments to the wife "so long as you shall live," and in Landres v. Rosasco, 62 Cal.App.2d 99, 144 P.2d 20, and Harnden v. Harnden, 102 Cal.App.2d 209, 227 P.2d 51, the payments were to continue for an agreed...
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