Hough v. Hough

• Decision Date: 26 June 1945
• Docket Number: L. A. No. 19234.
• Citation: 26 Cal.2d 605
• Court: California Supreme Court
• Parties: HAZEL M. HOUGH, Respondent, v. JAMES V. HOUGH, Appellant.

26 Cal. 2d 605

HAZEL M. HOUGH, Respondent, v. JAMES V. HOUGH, Appellant.

L. A. No. 19234.

Supreme Court of California

June 26, 1945

Holbrook & Tarr and Leslie R. Tarr for Appellant.

Sullivan & Lane for Respondent.

CARTER, J.—On January 25, 1927, plaintiff commenced an action for divorce against her husband, the defendant herein. Thereafter, in August, 1927, plaintiff and defendant entered into an agreement providing for the settlement of their property rights. The community property, consisting principally of a going concern, was valued at $75,000. The agreement provided that defendant would pay plaintiff $35,000 and transfer to her other items of community property. The agreement further provided that plaintiff was to have the custody of the two minor children of the parties; that defendant would pay plaintiff $200 per month for her support "during her life unless she re-marries, and if she remarries the said monthly alimony payments to cease; . . ." He also agreed to pay $50 and $75 per month for the support of the children.

Although no mention was made in the divorce complaint of the agreement, the waiver of answer filed by defendant recites that the agreement had been made and it was introduced in the divorce proceeding as plaintiff's exhibit. The interlocutory decree of divorce awarded the custody of the children to plaintiff and provided for their support, and ordered the payment to her of the sum of $35,000, and also provided for the payment to her of $200 per month "for her own support and maintenance, beginning September 1st, 1927, and to continue during her lifetime unless she remarries; . . .," and the performance of some of the other terms of the agreement. It closes with the statement that the "above provisions are in accordance with the property settlement filed herein, which said property settlement is hereby approved by the Court." The final decree entered in 1928 adopted the terms of the interlocutory decree. Defendant complied with the terms of the decree, except as to some items not here important, until in 1934, when he applied for a modification of the decree with respect to the $200 monthly payments to plaintiff, release from support of one child who had become emancipated, and a reduction in the support payment for the other. The application was based upon changed circumstances (the financial losses and embarrassment of defendant). Plaintiff countered with an affidavit and an order to defendant to show cause why he should not be held in contempt for not paying the full amount for the past year (defendant answered that affidavit) and also an affidavit opposing the modification. She also presented the affidavit of her counsel in opposition to the modification in which it was claimed that the payments of $200 per month were to be in lieu of "an attempted" division of the community property. The issues of contempt and modification being joined, the court on May 11, 1934, made its order stating: "The plaintiff's objection to hearing order to show cause re modification on grounds the Court has no jurisdiction to modify provision of property settlement re support of plaintiff is denied. The Court finds the defendant has paid only $100.00 per month on support since April 1933 and is $1200.00 in arrears, and that contempt has not been willful. Arrearages to be paid at the rate of $50.00 per month until paid; support of plaintiff reduced to $100.00 per month, commencing June 1, 1934, until further Order of Court, or until plaintiff remarries. Order for support of child to remain. These payments to be made direct. Plaintiff's motion for additional attorney fees denied." No appeal was taken from that order and it became final.

Thereafter, on September 25, 1942, plaintiff commenced the instant action on the agreement to recover the difference between the monthly payments of $200 provided for in the interlocutory decree and the monthly payments of $100 as modified by the order of May 11, 1934, which would have accrued since the modification except for it. Defendant pleaded the order of modification as res judicata. The court gave judgment for plaintiff, finding that "said contract was a property settlement agreement wherein the parties agreed upon the settlement of their respective property rights arising out of their marital relations"; that "plaintiff submitted said property settlement contract, herein sued upon, to the Court in said divorce proceeding for its approval and that said Court approved said contract and fully adjudicated and determined all rights arising under said contract"; that "it is not true that all the rights of plaintiff under said contract were adjudi- cated at the time the Interlocutory Decree was modified on the 11th day of May, 1934."

Turning first to the relation between the separation agreement and the divorce decree, it appears to be well settled, that if the agreement is presented to the court in the divorce proceeding for adjudication, and the agreement, or a part thereof, is incorporated in the decree and made a part thereof, the part so incorporated is merged in the decree. (See Warren v. Warren, 116 Minn. 458 ; Herrick v. Herrick, 319 Ill. 146 [149 N.B. 820]; Wallace v. Wallace, 74 N.H. 256 [67 A. 580, 13 Ann.Cas. 293]; Maginnis v. Maginnis, 323 Ill. 113 ; Lilley v. Lilley, 125 Conn. 339 ; Fleming v. Yoke, 53 F.Supp. 552; (See Reynolds v. Reynolds, 53 R.I. 326 ); Worthington v. Worthington, 224 Ala. 237 ; Adler v. Adler, 373 Ill. 361 ; McVeigh v. McConnell, 313 Ill.App. 75 ; Corbin v. Mathews, 129 N.J. Eq. 549 ; Prime v. Prime, 172 Ore. 34 ; Ex parte Jeter, 193 S.C. 278 ; Rufner v. Rufner, 131 N.J.Eq. 193 ; Applegate v. Applegate, 135 N.J.Eq. 29 ; Gavette v. Gavette, 104 Colo. 71 ; Holloway v. Holloway, 130 Ohio St. 214 .) In Holloway v. Holloway, supra, the issue involved was whether a holding for contempt for failure to pay support allowances under a divorce decree which was based upon a separation agreement incorporated therein would be an unlawful imprisonment for debt, and the court held it would not because the obligation was on the decree and not the agreement, stating at page 580:

"The problem here presented is not the enforcement of an agreement by contempt proceedings, but rather the enforcement by contempt proceedings of a decree which has incorporated therein an agreement to pay alimony. The distinction is important. A decree is valid as such regardless upon what it may be grounded. There is nothing in the law to render a decree invalid or ineffectual merely because it is predicated upon an agreement of separation, which agreement is incorporated bodily in the decree. A decree which incorporates an agreement is a decree of court nevertheless, and as soon as incorporated into the decree the separation agreement is superseded by the decree, and the obligations imposed are not those, imposed by contract, but are those imposed by decree, and enforceable as such. Once the contract is merged into the decree, the value attaching to the separation agreement is only historical." (Emphasis added.) And it should logically and justly follow therefrom that thereafter there is no right of action on the. agreement incorporated in the decree. Generally, an action on a claim for money resulting in a decree in equity, such as a divorce decree, for the payment of money is merged in the decree, and no action thereafter lies upon the claim. The plaintiff must rely upon the judgment. (Rest., Judgments, § 47, comment g.) True, the basis for an alimony award arises out of the law imposed obligation of support rather than contract, but where the parties agree to a specified amount and the agreement is presented to the court, it becomes a part of the issues litigated. One of the precise issues involved in the divorce action is whether or not support payments should be ordered and if so the amount thereof. The agreement deals with identical questions. When it is incorporated in and made an operative part of the decree, there is no longer any occasion for its independent existence. Additional rights have been thereby gained by the one to whom the payments are to be made. The judgment is enforceable in the customary manner and also by contempt proceedings in a proper case. For those benefits, any disadvantages ensuing from the merger should justly be borne. The action of the court in ordering support payments in the terms of the agreement would be rather an empty gesture if the agreement itself stood alone and could be enforced regardless of the decree. The retained power of the court to modify the decree upon a showing of changed circumstances (Oiv. Code, § 139) which is based upon sound policy would be seriously impaired, and any attempt on its part to give relief thereunder would be abortive if the parties could still enforce the agreement which had been made a part of the decree. True, an action on the contract would not carry with it the contempt method of enforcement, but the end result would be that a matter in which the state has a vital interest, the support allowance, would be outside the policy declared by the state. No such anomalous situation should be permitted to exist. It is aptly said in 39 Michigan Law Review 128:

"It is conceived that the basic questions in regard to the power of a court to modify decrees for alimony which are based upon a contract cannot be solved by definition, and it is thought that the solution should lie in an evaluation of the ends which will be accomplished by the various theories and their social desirability.

"In the first place, should the fact that there is incorporated into the decree a contract of the parties as to support alter the power of the court over such decree? Assuming that the court has power by statute to modify a decree not based on contract, it would seem that in the view of most courts there is no sufficient reason to take the decree based on contract out of the operation of the statute as to the alimony provisions. ...