Lubin v. Lubin

• Decision Date: 02 October 1956
• Citation: 302 P.2d 49,144 Cal.App.2d 781
• Court: California Court of Appeals Court of Appeals
• Parties: Marie LUBIN, Plaintiff and Appellant, v. Mollie LUBIN, Executrix of the Estate of Herbert Lubin, deceased, Defendant and Respondent. Civ. 21481.

Page 49

302 P.2d 49

144 Cal.App.2d 781

Marie LUBIN, Plaintiff and Appellant, v. Mollie LUBIN, Executrix of the Estate of Herbert Lubin, deceased, Defendant and Respondent.

Civ. 21481.

District Court of Appeal, Second District, Division 2, California.

Oct. 2, 1956.

Rehearing Denied Oct. 29, 1956.

Hearing Denied Nov. 28, 1956.

Meyer Berkowitz, Beverly Hills, for appellant.

Gold & Needleman and Harry M. Fain, Beverly Hills, for respondent.

ASHBURN, Justice.

This case presents the problem of method and effect of incorporating a property settlement agreement into a divorce decree, also that of accrual of a cause of action upon an agreement to maintain insurance to provide support for the wife from and after the husband's death, and other related matters, such as abandonment and rescission of the agreement. Plaintiff wife appeals from a judgment denying her any relief.

Herbert Lubin and plaintiff Marie were married on June 29, 1924, lived together until May 6, 1930 when he deserted her and took their two boys, aged five and two years, with him to Europe. There the three remained until after the making of a property settlement agreement on April 11, 1932. The primary question in this case is whether that agreement was effectually incorporated into the divorce decree which the wife obtained in Chicago on May 6, 1932. The trial court held that it was incorporated and merged into the decree but that the obligation to provide insurance, therein expressed, disappeared in the process.

The agreement, negotiated and drawn by the attorneys for the respective parties while Herbert and the boys were still in Europe, was carefully designed to avoid the making of any promises which would become effective unless or until same were embodied in a decree of divorce entered in an action to be filed by Marie in Chicago. ¹ Section 'Second' of the document provides: 'In the event that the Court shall determine that said Marie is entitled to a decree in said suit, said Herbert hereby consents to the entry of a decree therein and authorizes his said solicitors to consent to the entry of such a decree, provided such decree embodies the provisions with respect to the custody of the children of said Herbert and Marie and the property settlement hereinafter contained.' (Emphasis added.) Each promissory paragraph is preceded by this language or its substantial equivalent: 'The parties hereto hereby agree that if the court shall determine that said Marie is entitled to a decree in said action, said decree shall provide' (quoting section 'Third'). That portion of the contract covers the matter of custody of the boys in the father, visitation by the mother, place of their residence and like matters. Section 'Fourth' contains this: 'The parties hereto hereby agree that if the Circuit Court of Cook County shall determine that said Marie is entitled to a decree in said action, said decree shall provide: (a) That Herbert Lubin will immediately provide and (subject to the provisions hereinafter contained) will maintain and pay the premiums on insurance policies upon his life, having an aggregate fact value of One Hundred Fifty Thousand Dollars ($150,000.00). Such policies shall provide for the payment, after the death of said Herbert Lubin, to said Marie Lubin during her lifetime of eight hundred thirty-three dollars and thirty-three cents ($833.33) per month (including income and principal) for as long a period of her lifetime as can be arranged thereunder, both of the parties agreeing to co-operate in the execution of any instruments necessary to effectuate such form of settlement. Such policies shall provide that any unexpended portion thereof, upon the death of Marie Lubin, shall be paid to the Chicago Title and Trust Company, as Trustee under Trust No. 18686 (the present trust). In the event of the death of Marie Lubin prior to the death of Herbert Lubin, said policies shall provide that said Herbert Lubin may designate as new beneficiary thereunder, either the said Trustee under Trust No. 18686 and/or the said children; subject, however, to the right of the said Herbert Lubin to reduce the amount of the said life insurance as provided for in sub-paragraph (c) of this Paragraph Fourth.' Subparagraphs (b) and (c) thereof provide that Herbert shall pay into a trust a specified percentage of his 'unexpended annual income' (computed according to a specified formula), until $200,000 shall have been placed therein, whereupon he shall have the right to withdraw all life insurance mentioned in subparagraph (a) and have full control and ownership of the same. This latter procedure was never pursued and does not enter into the controversy before us.

Prior to the making of this agreement, in June 1927, Marie had created a trust with Chicago Title & Trust Company of Chicago, Illinois, placing therein property worth $1,750,000 which apparently yielded her an income of $10,000 a year, during her lifetime only. For this reason no provision was made in the property settlement agreement for any alimony, and the insurance provision was made in order to afford her support after the husband's death, but not before. Section 'Fifth' says: 'It is further agreed by and between the parties hereto and said decree shall provide, that in consideration of the provisions for the support of said Marie herein contained and to be embodied in said decree, said Marie shall release and relinquish all other rights in and to the property of said Herbert now owned or hereafter acquired by him, including all right of dower, homestead or other statutory rights, and in consideration of such release by said Marie, said Herbert shall likewise release all rights in and to the property of said Marie now owned or hereafter acquired by her, including all right of dower, homestead or other statutory rights * * *.' (Emphasis added.) Herbert also agrees in another section to pay court costs and wife's attorney fees. Marie agrees to dismiss her California divorce proceeding upon Herbert's appearance in the Illinois case, and Herbert agrees to return to the United States with the children upon entry of an Illinois divorce decree.

The divorce case came on for hearing on May 6, 1932, Herbert having appeared and filed an answer. The court found plaintiff Marie entitled to a divorce and granted same. The decree sets forth at length the provisions of the agreement concerning custody, visitation, etc., of the children. There is no specific mention of the insurance phase of the agreement, but the decree does say: 'The Court further finds that in and by said contract, the parties hereto have heretofore agreed upon a property settlement which is embodied therein; * * * and the Court further finds that said contract has been fairly entered into and is a fair, equitable and reasonable contract; and the Court hereby approves and confirms said contract and all of the terms, covenants and conditions thereof, and makes said contract, by reference a part of this decree.' (Emphasis added.) Also, it adjudges 'that all the right, title and interest of the complainant Marie Lubin of every kind, character and description in and to the property or estate of the defendant Herbert Lubin, including the right of alimony, dower and other statutory rights, except as established in said contract, is hereby released, discharged and forever barred.' (Emphasis added.)

The question of whether the insurance provisions of the agreement were thus incorporated into the decree and a merger thereby effectuated is one of Illinois law, 50 C.J.S., Judgments, § 890, p. 491, but counsel have made no claim that the pertinent laws of that state differ from ours, there was no such discussion in the trial court, our own research has disclosed no substantial differences, and we therefore proceed upon the presumption that the laws of Illinois are the same as those of California in all respects pertinent to this discussion. Mercantile Acceptance Co. v. Frank, 203 Cal. 483, 490, 265 P. 190, 57 A.L.R. 696.

Most of the confusion surrounding the question of incorporation and merger of property settlement agreements in this state has been dissipated by the opinion in Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865. The matter arose upon an application for reduction in monthly payments of alimony provided in a property settlement agreement. The motion was denied by the trial court because the agreement was incorporated by reference only. The principal question on appeal was whether an incorporation by reference could and did effect a merger. Merger is defined at page 58 of 42 Cal.2d, at page 866 of 265 P.2d, as 'the substitution of rights and duties under the judgment or the decree for those under the agreement or cause of action sued upon.' The court then said: 'The question as to what extent, if any, a merger has occurred, when a separation agreement has been presented to the court in a divorce action, arises in various situations. Thus, it may be necessary to determine whether or not contempt will lie to enforce the agreement, whether or not other judgment remedies, such as execution or a suit on the judgment, are available, whether or not an action may still be maintained on the agreement itself, and whether or not there is an order of the court that may be modified under the provisions of section 139 of the Civil Code. In any of these situations it is first necessary to determine whether the parties and the court intended a merger.' Also: 'Whether or not a merger is intended, the agreement may be incorporated into the decree either expressly or by reference. * * * If a merger is intended, the purpose of incorporation is, of course, to make the agreement an operative part of the decree.' At page 59 of 42 Cal.2d, at page 867 of 265 P.2d: 'It is settled that a document may be incorporated either expressly or by apt reference into a judgment or decree so as to make it an operative part of the order of the court. [Citing cases.] Plain...