Marriage of Hufford, In re

• Citation: 199 Cal.Rptr. 726,152 Cal.App.3d 825
• Parties: In re MARRIAGE OF HUFFORD. Guy D. HUFFORD, Appellant, v. Dorothy Morse HUFFORD, Respondent. Civ. 68749.
• Decision Date: 06 March 1984
• Court: California Court of Appeals

Page 726

199 Cal.Rptr. 726

152 Cal.App.3d 825

In re MARRIAGE OF HUFFORD.

Guy D. HUFFORD, Appellant, v. Dorothy Morse HUFFORD, Respondent.

Civ. 68749.

Court of Appeal, Second District, Division 7, California.

March 6, 1984.

Hearing Denied May 31, 1984.

Taylor, McCord, Paul & Johnson, Ventura, and Emily J. Andelman, Camarillo, for appellant.

Christine M. Yegan, Ventura, for respondent.

THOMPSON, Associate Justice.

In this appeal we are called upon to determine whether judicial modification of spousal support is precluded by a boiler plate provision in a marital settlement agreement which merely provides that the agreement is entire and cannot be amended, altered or modified by the parties except by a writing signed by both parties. For the reasons to follow, we have concluded that such a provision does not fulfill the exception of Civil Code section 4811, subdivision (b), to exclude judicial modification.

Guy Hufford (husband) appeals from the denial of his order to show cause for modification of spousal support of his ex-wife, Dorothy Hufford (wife).

On March 1, 1978, husband and wife filed in court a signed written "stipulation" and waiver of rights prepared by wife's counsel, covering among other things spousal support, division of property, attorney's fees and waivers. Paragraph 2 of the agreement provided for husband to pay wife spousal support of $1,200 per month for the first two years after entry of an interlocutory judgment of dissolution, and thereafter $600 per month until wife remarried or died.

Paragraph 6 recited the parties' agreement that "this court shall retain jurisdiction, after rendering the Final Judgment of Dissolution in the subject action, to determine all issues raised by this agreement and not specifically excluded from this reservation of jurisdiction."

Paragraph 10 provided: "This agreement is entire. We may not alter, amend or modify it, except by an instrument in writing executed by both of us. It includes all representations of every kind and nature made by each of us to the other. This agreement shall be binding upon and inure to the benefit of both of us, and of our heirs, administrators, executors, successors, and assigns."

On March 15, 1978, the Ventura Superior Court entered an interlocutory decree of dissolution of marriage ordering spousal support, property division, attorney's fees and execution of further documents in substantially identical language with the provisions of the stipulation. The decree did not in any way refer to the prior stipulation; nor did it contain the provisions of paragraphs 6 or 10.

On July 14, 1982, husband filed an order to show cause for modification of spousal support on grounds of alleged reduced ability to pay because of lesser income and increased obligations for a new wife and five children, coupled with ex-wife's reduced need. The wife opposed the motion on the ground that paragraph 10 of the stipulation rendered the spousal support provision nonmodifiable.

The superior court denied husband's request for modification. The court found that the order for spousal support contained in the judgment of dissolution was not modifiable because the provision in paragraph 10 of the stipulation constituted compliance with Civil Code section 4811, subdivision (b), as to nonmodifiability of spousal support, and the provision of paragraph 6 of the stipulation did not constitute a reservation of jurisdiction to modify spousal support.

This appeal followed.

Discussion

CIVIL CODE SECTION 4811¹, subdivision (b), provides in pertinent part:

"(b) The provisions of any agreement for the support of either party shall be deemed to be separate and severable from the provisions of the agreement relating to property. All orders for the support of either party based on such agreement shall be deemed law-imposed and shall be deemed made under the power of the court to make such orders. The provisions of any agreement or order for the support of either party shall be subject to subsequent modification or revocation by court order, ... except to the extent that any written agreement ... specifically provides to the contrary." (Italics added.)

Thus, there is a general rule in favor of modifiability by the court of spousal support provisions.

"The evident purposes of Civil Code section 4811 were to dispose of the abstruse and unprofitable jurisprudence which had grown up around the concepts of integration and severability [citations] and establish a legislatively declared social policy that contractual provisions for the support of a spouse be subject to modification by the court in the light of changed circumstances unless the parties explicitly agree to preclude such modification. The utility of this policy is obvious. Even in the absence of inflationary distortions, the parties to a marital settlement agreement can hardly anticipate and provide for unexpected changes of circumstance which may invalidate the expectations reflected in the agreement. Despite the public interest in reserving for judicial redetermination on the basis of changed circumstances contractual provisions for support, the Legislature left it open to marital partners to preclude judicial modification by inserting in the agreement a specific provision to that effect." (In re Marriage of Nielsen (1980) 100 Cal.App.3d 874, 877-878, 161 Cal.Rptr. 272.) (Italics added.)

Although an agreement making spousal support nonmodifiable by the court is not contrary to public policy (In re Marriage of Hawkins (1975) 48 Cal.App.3d 208, 212-213, 121 Cal.Rptr. 681), "[u]nderlying section 4811 is the policy determination that the public interest is best served when support awards reflect changes in need or ability to pay" (Esserman v. Esserman (1982) 136 Cal.App.3d 572, 577, 186 Cal.Rptr. 329).

In determining whether the trial court properly found that the language in the agreement herein was legally sufficient to preclude judicial modification of spousal support under section 4811, subdivision (b), we first view, from an historical perspective, cases considering that issue.

In re Marriage of Smiley (1975) 53 Cal.App.3d 228, 125 Cal.Rptr. 717, held that a general provision of an agreement incorporated into the dissolution decree containing language "that this agreement is entire, indivisible, and shall constitute an integrated agreement, which is not subject to modification [and] [t]his agreement may not be amended except by an instrument in writing signed by both parties" (id., at p. 231, 125 Cal.Rptr. 717) rendered spousal support nonmodifiable under section 4811, subdivision (b), notwithstanding the language in the spousal support provision of the agreement that "the support of Wife is subject to any order, Decree or Judgment of any Court based thereon" (id., at pp. 230, 233). The court held the latter language simply made it clear that contempt was a permissible method of enforcement and the former language was sufficient to satisfy the statutory requirement that written agreements specifically provide against modifiability by the court. ²

Forgy v. Forgy (1976) 63 Cal.App.3d 767, 134 Cal.Rptr. 75, held under former section 139 (the predecessor of section 4811) that the following language precluded later judicial modification of spousal support: " '[i]n the event that either the Husband or the Wife shall hereafter obtain a decree of absolute or limited divorce, such decree shall incorporate the provisions of this Agreement to the extent acceptable to the Court, but such decree shall in no way affect this Agreement or any of the terms, covenants, or conditions thereof, it being understood that this Agreement is absolute, unconditional and irrevocable.' " (Id., at p. 770, 134 Cal.Rptr. 75.)

The Forgy court explained: "The word 'decree' used therein impliedly includes the orders embodied in the decree and any modification of those orders. Any other interpretation would permit the court to comply with the agreement in its 'decree' but forthwith effect noncompliance therewith by a subsequent decree or order. As thus interpreted the agreement provides, a court decree incorporating its provisions and any modification thereof shall in no way affect the spousal support provisions thereof as to which the agreement 'is absolute, unconditional and irrevocable.' A modification of those provisions certainly would 'affect' them and render nugatory the understanding of the parties the agreement was absolute and irrevocable. [p] To comply with the nonmodifiable provisions of section 139 it is not necessary the parties to a separation agreement state categorically: 'The provisions of this agreement for support are not subject to modification or revocation by court order.' To the contrary, 'no particular magic words are needed' to provide the exception to modifiability contemplated by the statute. [Citations.]" (Id., at p. 770-771.) ³

In re Marriage of Kilkenny (1979) 96 Cal.App.3d 617, 158 Cal.Rptr. 158, relying on Forgy, supra, held that the terms "absolute, unconditional and irrevocable" as intended in the agreement prohibited modification of spousal support by court decree. The Kilkenny court pointed out that the provision in its agreement that " '[i]t is the intention of the parties that this agreement, whether or not incorporated in any decree of divorce, shall be binding upon the parties, and shall be absolute, unconditional and irrevocable' " presented an even stronger showing of nonmodifiability than did Forgy because the parties more clearly stated their intent. (96 Cal.App.3d at p. 620, 158 Cal.Rptr. 158.)

Subsequently, In re Marriage of Nielsen, supra, 100 Cal.App.3d 874, 161 Cal.Rptr. 272, addressed the issue of what general boiler plate language in agreements, if any, was sufficient to preclude judicial modification of spousal support. The court, relying upon Forgy, supra, held that a provision in the final paragraph that the agreement shall not depend for its effectiveness on court...