Marriage of Nielsen, In re

• Decision Date: 09 January 1980
• Citation: 161 Cal.Rptr. 272,100 Cal.App.3d 874
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Reed Emerson and Ruby Evelyn NIELSEN. Reed Emerson NIELSEN, Appellant, v. Ruby Evelyn NIELSEN, Respondent. Civ. 46375.

Page 272

161 Cal.Rptr. 272

100 Cal.App.3d 874

In re the MARRIAGE OF Reed Emerson and Ruby Evelyn NIELSEN.

Reed Emerson NIELSEN, Appellant, v. Ruby Evelyn NIELSEN, Respondent.

Civ. 46375.

Court of Appeal, First District, Division 4, California.

Jan. 9, 1980.

Hearing Denied March 6, 1980.

Bruce B. Bruchler, Crump, Bruchler & Crump, Lakeport, for appellant.

Christopher K. King, Winters & Winters, Benicia, for respondent.

CHRISTIAN, Associate Justice.

Reed Emerson Nielsen appeals from an order modifying the support provisions of a judgment of marital dissolution.

Appellant and Ruby Evelyn Nielsen separated in 1972 after 31 years of marriage. The parties signed a property settlement agreement prepared by counsel for wife. The agreement contained a spousal support provision. The agreement was incorporated in the judgment of marital dissolution. On October 20, 1978, wife secured an order to show cause concerning a modification. After a hearing, the court ordered a modification of the interlocutory and final judgments by increasing the monthly support payments to be paid by husband to wife. The present appeal followed.

Husband contends that the court lacked jurisdiction to modify the provision for support because the property settlement agreement was not merged into the interlocutory decree. Prior to the enactment of Civil Code section 4811, ¹ the question of whether the parties and the trial court intended to merge a property settlement agreement into an interlocutory decree was relevant to determine whether spousal support payments were law-imposed and subject to modification by the court. Section 4811 makes the concept of merger irrelevant to determine whether a court may modify a marriage settlement agreement executed on or after January 1, 1970 (6 Witkin, Summary of Cal. Law (8th ed. 1974) p. 5061.) The settlement agreement in the present case was executed after January 1, 1970. The support agreement therefore is law-imposed and subject to modification by court order, unless the written agreement or an oral agreement entered in open court specifically provides to the contrary. (Civ.Code, § 4811, subd. (b).) The trial court did not lack jurisdiction.

Husband next contends that the trial court erred when it found that the marriage settlement agreement was subject to modification. The marital settlement agreement contained a conventional provision for reciprocal release of rights. ²

A question in this appeal is whether the release language " specifically provides" that the court may not modify the support provisions of the agreement as incorporated in the judgment of marital dissolution. Only such a specific provision avoids the general rule of Civil Code section 4811 that "The provisions of any agreement for the support of either party shall be deemed to be separate and severable . . . law-imposed (obligations) deemed made under the power of the court to make such orders (and thus) subject to subsequent modification or revocation by court order . . . ."

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 (see, e. g., DiMarco v. DiMarco (1963) 60 Cal.2d 387, 33 Cal.Rptr. 610, 385 P.2d 2; Plumer v. Plumer (1957) 48 Cal.2d 820, 313 P.2d 549; Dexter v. Dexter (1954) 42 Cal.2d 36, 265 P.2d 873) 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.

Here, the 1972 agreement established spousal support in the amount of $214 per month, "continuing for remainder of wife's life." That allowance was supplemented by provisions that husband would make payments on the house occupied by wife and would provide health insurance. The paragraph of the agreement dealing with spousal support is silent on the question of modification. The general release of rights (fn. 2, Ante ) refers, among other items, to "all claims of either party upon the other for support and maintenance . . . it being understood that this present agreement is intended to settle the rights of the parties hereto in all respects." So far as the contractual relations of the parties are concerned, the general release of rights would be held to express an intention that the obligation of support would be governed by the agreement. (Cf. Dexter v. Dexter, supra, 42 Cal.2d 36, 41, 265 P.2d 873.) But the release of rights provision is entirely silent with respect to the power of modification vested in the court by Civil Code section 4811. Therefore, the trial court acted correctly when it determined that there was no specific provision in the release language precluding modification by judicial action. Just as parol evidence may not be received to supply a missing provision against modification (In re Marriage of Wright (1976) 54 Cal.App.3d 1115, 126 Cal.Rptr. 894), the statute cannot be avoided by drawing inferences as to the intention of the parties from a general "release of rights" paragraph which contains no "specific" provision concerning judicial modification.

Although neither the paragraph establishing spousal support nor the general release-of-rights paragraph excludes judicial modification, a contrary result is required by the final paragraph of the agreement: "EFFECTIVE DATE: This Agreement is executed on and shall be effective from and after the 9th day of February 1972. This Agreement may, if desired, be submitted to the Court for its approval, but this Agreement shall not depend for its effectiveness on such approval, nor be affected thereby." The provision that the agreement "shall not depend for its effectiveness on (court) approval, nor be affected thereby" is a specific provision precluding judicial modification. As the court declared in Forgy v. Forgy (1976) 63 Cal.App.3d 767, 134 Cal.Rptr. 75, construing a similar provision, any other interpretation would permit the court to give a merely formal approval to the agreement but later affect it by changing the support obligation. (Also see In re Marriage of Kilkenny (1979) 96 Cal.App.3d 617, 158 Cal.Rptr. 158.)

The order is reversed with directions to discharge the order to show cause.

CALDECOTT, P. J., concurs.

POCHE, Associate Justice, concurring.

I concur in the judgment only.

Civil Code section 4811, subdivision (b) provides that any agreement for spousal support "shall be subject to subsequent modification or revocation by court order . . . except to the extent that any written agreement . . . specifically provides to the contrary." Contrary to the majority's opinion, it does not provide that in order to make spousal support agreements nonmodifiable the parties must use certain magic words nor does it indicate that the language must refer to a court's power to modify.

The degree of specificity envisioned by the Legislature could not have been made clearer than in Forgy v. Forgy (1976) 63 Cal.App.3d 767, 134 Cal.Rptr. 75. Faced with statutory language which was identical to that quoted above and was contained in Civil Code section 139, the predecessor of section 4811, the court stated:

"To comply with the nonmodifiable...