Levitt v. Levitt

• Court: California Supreme Court
• Writing for the Court: PEEK; TRAYNOR; PETERS; TOBRINER
• Citation: Levitt v. Levitt, 62 Cal.2d 477, 42 Cal.Rptr. 577, 399 P.2d 33 (Cal. 1965)
• Decision Date: 16 February 1965
• Parties: , 399 P.2d 33 Irmgard Dawson LEVITT, Plaintiff and Appellant, v. Gene LEVITT, Defendant and Respondent. L. A. 27143.

Page 577

42 Cal.Rptr. 577

62 Cal.2d 477, 399 P.2d 33

Irmgard Dawson LEVITT, Plaintiff and Appellant, v. Gene LEVITT, Defendant and Respondent.

L. A. 27143.

Supreme Court of California, In Bank.

Feb. 16, 1965.

Rehearing Denied March 17, 1965.

Don Lake and Val Linton, Los Angeles, for plaintiff and appellant.

Zagon, Aaron & Schiff, Harold E. Aaron and Gunther H. Schiff, Beverly Hills, for defendant and respondent.

PEEK, Justice.

Plaintiff Irmgard Dawson Levitt appeals from that portion of an order which reduces from $500 per month to a token amount the allowance for her support by defendant husband Gene Levitt awarded by a previous decree of divorce. Since we conclude that the provisions for support of plaintiff Irmgard were severable from an agreement signed by the parties respecting the division of property and other marital rights, and since the parties may not by stipulation deprive the court of jurisdiction to modify alimony payments provided for by judicial decree, we affirm the trial court's order.

Irmgard and Gene were married in June 1949 and separated in July 1954. One child, Christopher, was born to the parties during their marriage. James Francis Levitt, Irmgard's child by a prior marriage, also resided with them.

A complaint for divorce was filed by Irmgard in December 1954. The following month Irmgard and Gene signed a property settlement agreement, which at one point recited that 'The parties desire to settle their respective property rights and interests as of the date of this agreement and to arrange by agreement for the making of periodical payments by Husband to Wife in discharge of his legal obligation to support and maintain Wife because of their marital and family relationship. * * *' The parties also stated therein that 'each does hereby declare that the consideration for the execution of this agreement is such resolution between themselves as to the disposition of their property rights and interests and the settlement of support and maintenance rights of one to the other. * * *'

In a separate article the agreement provided for payments by Gent to Irmgard and the children. The contracting parties expressly stated in that portion of the agreement that 'Husband and Wife, in discharge of Husband's obligation to support and maintain Wife because of their marital and family relationship, hereby agree that Husband, by way of alimony and not as a part of a property settlement shall pay to Wife for alimony, support, and maintenance so long as Husband is alive and so long as Wife is living and remains unmarried, * * *' $400 per month 'for the support and maintenance of Wife,' and $225 per month 'for the support and maintenance of each of the minor children,' Christopher and James. (Italics added.)

An interlocutory judgment of divorce was entered in February 1955, which incorporated to the extent not inconsistent with the decree the provisions of the property settlement agreement and ordered compliance with the terms of that agreement. Final judgment of divorce was entered March 1956.

In November 1956 the parties stipulated that the final decree be modified so that $500 was payable by defendant each month 'for the support and maintenance of Plaintiff,' and $250 was payable each month for Christopher's support. All of defendant's financial obligations to James were terminated. The stipulation for modification further recited: 'It is understood and agreed that Defendant reserves any rights he may presently have or may obtain in the future to seek further modification in the Property Settlement Agreement, Interlocutory Decree and Final Decree hereunder, but Defendant covenants and agrees not to seek any modification or make any collateral attack concerning alimony or child support except in the event of a substantial decrease from Defendant's 1956 income. " (Italics added.) The final judgment of divorce entered March 1956 was ordered modified to incorporate those portions of the stipulation for modification pertaining to alimony, child custody, and child support. The parties concede that the above portions of the stipulation were merged in the final judgment. (See Flynn v. Flynn, 42 Cal.2d 55, 58-59, 265 P.2d 865.)

In May 1962 defendant Gene sought modification of the prior orders, including the cessation of his payments to Irmgard to their reduction to a nominal amount. He stated in a certified declaration that he had remarried and had one child by his present wife, in addition to the care of Christopher for a substantial portion of the year. He also alleged that to his best information Irmgard, who was born in Germany and was a naturalized United States citizen, had established residence in Germany and had resided in the United States for only 28 months of the previous seven years. Gene further stated that he was at present a free-lance television writer and had no other employment, although it was admitted that up to the present his yearly income had not fallen below his income in 1956.

Defendant declared that he had not defaulted in his payments to Irmgard, having paid over $40,000 for her support and maintenance in the previous seven years. He stated that 'Plaintiff is able-bodied and capable of being self-supporting and the continuance of support and maintenance by defendant places an undue burden on defendant and puts a premium on plaintiff's remaining unmarried.' It further appears, from a settled narrative statement on appeal (Cal. Rules of Court, rule (7)), that at the time of hearing Irmgard was not employed. Ten years previously she worked as a motion picture extra. Her sole source of income was defendant's alimony payments, and she leased a house in Germany relying upon the continuation of those payments. The settled statement also recited that defendant resided with his present wife and their child, along with two of his wife's children by a prior marriage.

The order now challenged by plaintiff was entered in June 1962. It provides that defendant continue his payments of $500 per month to Irmgard only until January 1, 1963, whereupon alimony payments are reduced to one dollar per year 'to continue until further order of the Court.' Defendant was awarded custody of Christopher for the nine-month school year, plaintiff to have custody during the three-month school vacation period. Under the present order defendant must pay to plaintiff the support and maintenance for Christopher only during the three-month period the boy resides with his mother.

Appellant urges that the support and maintenance provisions are part of an integrated property settlement agreement and cannot be modified without consent of the parties except in the event defendant's income falls below the level attained in 1956, thereby satisfying the condition specified in the stipulation of November of that year (see Flynn v. Flynn, supra, 42 Cal.2d 55, 60-61, 265 P.2d 865). Several portions of the agreement are cited in an attempt to uphold it as an integrated bargain, including the portion quoted above wherein the parties stated that the consideration for the execution of the agreement was the resolution of property claims and the settlement of rights to support and maintenance.

However, regardless of the latter general statement of intent and other indicia of an integrated agreement, the parties clearly expressed their specific intention that the support and maintenance to be provided Irmgard was 'by was of alimony and not as a part of a property settlement.' In the face of that declaration it must be held that the support provisions were in the nature of alimony and severable from the division of property rights. (Kelley v. Kelley, 151 Cal.App.2d 228, 233-235, 311 P.2d 90.) Hence the payments are subject to modification by the court upon a showing of changed circumstances. (See DiMarco v DiMarco, 60 Cal.2d 387, 392(6), 33 Cal.Rptr. 610, 385 P.2d 2; Baker v. Baker, 192 Cal.App.2d 730, 733, 13 Cal.Rptr. 772; Carson v. Carson, 179 Cal.App.2d 665, 668-669, 4 Cal.Rptr. 38.)

Appellant next points to defendant husband's statement in the stipulation for modification of November 1956, where he agreed not to seek any modification in alimony 'except in the event of a substantial decrease' from his 1956 income, an event which has not occurred. She urges that the court had no jurisdiction to modify that agreement unless the above condition was satisfied, citing Flynn v. Flynn, supra, 42 Cal.2d 55, 265 P.2d 865, and Campbell v. Campbell, 178 Cal.App.2d 77, 2 Cal.Rptr. 710. The Flynn and Campbell cases, however, are distinguishable in that the support provisions there involved were nonseverable parts of property settlement agreements (see 42 Cal.2d at 60-61, 265 P.2d 865; 178 Cal.App.2d at 80, 2 Cal.Rptr. 710), so that the support provisions could be modified by the court only to the extent prescribed by the underlying integrated agreements.

The nonintegrated agreement before us provides for severable payments of support or alimony, and such payments are modifiable 'subject to the discretion of the court as justice may require' (Hough v. Hough, 26 Cal.2d 605, 612, 160 P.2d 15, 18). It was further held in Hough that the provision of section 139 of the Civil Code authorizing the modification of support allowances becomes an implied part of any such agreement whenever, as herein, the agreement is merged in the decree. (Cf. Hawkins v. McLaughlin, 196 Cal.App.2d 318, 323-324, 16 Cal.Rptr. 572.) Thus in contracting concerning alimony payments when incorporation in the decree is contemplated the parties are presumed to be aware that the trial court has the power to modify or revoke such agreements in accordance with changed circumstances. (Smith v. Smith, 94 Cal.App. 35, 47, 270 P. 463.)

From the foregoing it is clear that the parties' stipulation that the alimony payments would not be modified unless defendant's income decreased below the level in 1956 did not preclude the court from ordering the present...