Levy v. Levy

• Decision Date: 04 October 1966
• Citation: 245 Cal.App.2d 341,53 Cal.Rptr. 790
• Court: California Court of Appeals Court of Appeals
• Parties: Marjorie LEVY, Plaintiff and Appellant, v. Julian LEVY, Defendant and Respondent. Civ. 22884.

Page 790

53 Cal.Rptr. 790

245 Cal.App.2d 341

Marjorie LEVY, Plaintiff and Appellant, v. Julian LEVY, Defendant and Respondent.

Civ. 22884.

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

Oct. 4, 1966.

Hearing Denied Nov. 30, 1966.

Martin J. O'Malley, Arthur N. Ziegler, San Francisco, for appellant.

Ollie M. Marie-Victoire, Jacob L. Karesh, San Francisco, for respondent.

SIMS, Justice.

Plaintiff wife has appealed from several orders made in proceedings which were instigated by defendant husband in which he secured an order relieving him from an obligation of making monthly payments for the support, care and maintenance of plaintiff, an order requiring her to contribute to the cost of the care, maintenance and support of their minor incompetent son, and an order declaring that defendant was not in default under the terms of the decree of divorce theretofore entered in the action.

Plaintiff asserts that the provisions for her support were not modifiable because they are contained in an integrated property settlemtn agreement which was approved by the court and made a part of the interlocutory decree, and that in any event the order relieving defendant of the obligation to make the payments was premature and unsupported by the evidence. She further contends that the trial court erred in ordering her to contribute to the support of their incompetent son because the defendant father failed to establish that he was unable to support the child or that there had been any adverse change in his circumstances, and because the order itself is uncertain and unauthorized in form.

Collateral matters presented are the scope of the appeal and the reviewability of the order which deprived plaintiff of the support payments, and a determination of whether the jurisdiction of the divorce court over the support payments terminated when the son attained his majority April 21, 1965.

For the reasons hereinafter set forth it is concluded that the trial court erred in purporting to modify the provisions contained in the agreement and decree for the support of the wife and in declaring that defendant was not in default under the terms of the divorce decree; that the trial court acted properly in entertaining the question of the relative obligation of each parent to contribute to the support of the son during his minority; and that the order is erroneous insofar as it purports to fix the obligations of the parents after the child attained his majority. Because the first error affects the entire proceedings all orders must be reversed. The scope of the appeal is reviewed in connection with the precedural history.

On November 3, 1950 plaintiff filed her complaint for divorce which included allegations that the parties had entered into a property settlement agreement and that the defendant was able to provide reasonable support and maintenance for the plaintiff and for the two minor children of the parties. Included in the prayer were separate requests for a reasonable sum for the maintenance and support of the children and plaintiff and for an award of the community property in accordance with the terms of the property settlement agreement.

According to the recitals of the interlocutory decree the case came on as a default matter on November 16, 1950. The decree awarded plaintiff the care, custody and control of the minor children with visitation rights to defendant. He was ordered to pay the sum of $100 per month for each of the children and $1,175 per month for the support, care and maintenance of plaintiff for a period of one year commencing November 1, 1950, and thereafter the sum of $175 per month commencing November 1, 1951. The payments are to terminate in the event of plaintiff's remarriage, but are chargeable against the estate of the defendant in the event of his death. These terms follow the provisions contained in the property settlement agreement which was ratified, confirmed and approved and was expressly made a part of the decree by the incorporation of an attached copy. A final decree signed and filed November 20, 1951 embodies the same terms as the intercutory decree.

Bruce, the younger son, is mentally disturbed and from about the time of the divorce until 1960 he was maintained at the Devereaux School in Santa Barbara. The defendant further paid for his support at the rate of $500 per month. In 1960 the father remarried and attempted to set up a household with his new wife and Bruce in San Francisco. On February 6, 1961, pursuant to a stipulation between the parties, the provisions for custody and support of the children in the final decree of divorce were stricken. The elder son attained his majority January 8, 1960, and a new provision referring only to the younger son was substituted, which reads: 'the defendant shall have the care, custody and control of the minor child of the parties, to wit; BRUCE LEVY, it being understood however that the legal custody of said child shall be in the plaintiff and the defendant; * * *' It further provided for visitation rights in plaintiff.

The youth proved uncontrollable. The defendant's second marriage terminated after five or six months. Bruce was sent to Napa State Hospital, and subsequently placed in a private care home where he was being maintained by the defendant at a cost of over $500 per month at the commencement of the present proceedings.

On September 16, 1964 defendant served and filed his notice of a motion for an order terminating alimony and for an order for plaintiff to contribute to the support of the minor child. It was accompanied by points and authorities and the declaration of defendant, in which he set forth the provisions for support of plaintiff as set forth in the interlocutory decree. He alleged therein that his income, earning power and assets had materially decreased; that he was spending $600 more or less a month for the support and maintenance of Bruce, the 'minor son of the parties, twenty (20) years of age'; that plaintiff was not contributing to the support of the minor son although she was well able to do so; and that he had fully complied with the terms of the decree of divorce and was not in default under any of its terms.

Plaintiff countered with a motion to dismiss defendant's motion for lack of jurisdiction because the order for the support of plaintiff was based upon an integrated property settlement agreement which is not subject to modification and she filed points and authorities in support of that position. In her declaration plaintiff referred to the provisions of the agreement and of the interlocutory and final decrees, and further alleged that commencing with the month of October 1961 deficiencies which had accumulated in the $175 per month payments to her aggregated $1,312.50 through October 1964. At the hearing on October 29, 1964 plaintiff offered another declaration in which she asserted that arrearages of $2.625 had accrued in connection with the total payments for the support of herself and the elder son in the years 1956 through 1959.

On November 3, 1964 the court rendered its minute order reading as follows: 'Property Settlement Agreement is not integrated so as to forbid modification by a trial court. Motion for orders terminating alimony payments to plaintiff granted, and motion for order requiring plaintiff to contribute to support of minor child granted.' On November 12, 1964 a formal order was signed and filed embodying similar terms. ¹

On November 16, 1964 plaintiff filed a notice of appeal from both the minute order, and the formal written order. On December 7, 1964 that appeal was dismissed by this court on defendant's motion which was interposed on the grounds that the orders appealed from were not final but merely interlocutory and that the appeal was premature. (1 Civ. 22464.)

The present notice of appeal was filed on March 15, 1965. This notice is not timely as a direct attack on the foregoing orders (Cal. Rules of Court, rule 2(a)) and the purported appeals from the November minute order and formal order must be dismissed. The portion of the orders which reserved the question of plaintiff's obligation to contribute to the support of her son was clearly interlocutory. It is incorporated in the final order signed and filed March 3, 1965 and may be reviewed therewith. That portion of the orders which terminated defendant's obligation to furnish support and maintenance to plaintiff was not incorporated in the March order. It is, however, an essential predicate of that order. In view of the disposition of the prior appeal in this case it should be and will be treated as an interlocutory order which is subject to review in connection with the March order. (See Code Civ.Proc. § 956.)

A hearing on November 23, 1964 resulted only in legal argument in regard to the jurisdiction of the court to proceed on the issue of child support in view of plaintiff's first appeal which was then pending. The proceedings reflect that the parties had in the interim appeared before a court referee who had indicated that defendant's payments to plaintiff to November 1, 1964 were $3,687 less than the amounts called for by the original decrees.

On January 14 and 28, 1965 testimony was given as to the financial status of each of the parties and the cost of the support and maintenance of Bruce, and the matter was submitted.

On February 1, 1965 the court made its minute order that plaintiff should contribute one-half of the support and maintenance of Bruce. The following day a second minute order amended the first to add 'Defendant to prepare Findings of Fact and Conclusions of Law.' Thereafter on March 2, 1965 findings of fact and conclusions of law were signed and filed, and on March 3, 1965 a formal written order was signed and filed. ² Plaintiff has attempted to appeal from each of those orders. The order of February 1, 1965 is deemed superseded by the amended order of February 2, 1965. The...