Marriage of Smiley, In re

• Decision Date: 24 November 1975
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Douglas Frederick and Frances Raines SMILEY. Douglas Frederick SMILEY, Petitioner and Appellant, v. Frances Raines SMILEY, Respondent. Civ. 46482.

Page 717

125 Cal.Rptr. 717

53 Cal.App.3d 228

In re the MARRIAGE OF Douglas Frederick and Frances Raines SMILEY Douglas Frederick SMILEY, Petitioner and Appellant, v. Frances Raines SMILEY, Respondent.

Civ. 46482.

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

Nov. 24, 1975.

As Modified on Denial of Rehearing Dec. 11, 1975.

Hearing Denied Jan. 21, 1976.

Newell & Chester and Robert M. Newell, Los Angeles, for petitioner and appellant.

Milo V. Olson, Los Angeles, for respondent.

KINGSLEY, Acting Presiding Justice.

This is an appeal by the husband from an order of the superior court denying his motion to modify the wife-support provisions of a previous order of the court, entered on September 20, 1970, which order had incorporated and ordered the parties to comply with the executory provisions of a property settlement agreement theretofore executed by the parties. ¹

I

The order herein appealed from was couched in the following terms:

'The Court finds that the Order, Judgment and Decree signed and filed on September 10, 1970 incorporated the Property Settlement Agreement entered into by the parties on June 1, 1970 and ordered the parties to comply with all the executory provisions thereof; that by Article I, ² Subdivision 3 of said Judgment and Property Settlement Agreement, the parties agreed and the Court ordered, that the Property Settlement Agreement was integrated not subject to modification, and that the Agreement may not be amended except by an instrument in writing signed by both parties. (Civil Code, § 4811(b)).

'Petitioner's request for modification is denied.'

The applicable provisions of that property settlement agreement are as follows: ³

'ARTICLE IV

'1. Husband shall pay to Wife, as alimony for her support and maintenance, the sum of $850.00 per month commencing September 1, 1970 and continuing monthly thereafter for five years, thence at the rate of $700.00 per month for the succeeding five years, thereafter $600.00 per month until the death or marriage of Wife. This provision for the support of Wife is subject to any order, Decree or Judgment of and Court based thereon.'

'ARTICLE VII

'3. The parties hereto acknowledge that this agreement constitutes their entire understanding and that neither has made any promise, covenant, representation, or warrantly, except as herein expressly set forth, and that this document contains all of the negotiations and agreements having been merged herein. The parties further covenant and agree that each and every promise, covenant, and undertaking herein set forth has been made as consideration for each and all of the remaining promises, covenants, and undertakings herein, and that this agreement is entire, indivisible, and shall constitute an integrated agreement, which is not subject to modification. This agreement may not be amended except by an instrument in writing signed by both parties.'

Prior to 1967, the case law of this state had developed complicated distinctions, whereby the modifiability and enforcement of the wife-support provisions of a property settlement agreement turned on the language of the agreement and of the decree. If the agreement did not refer to any court action and it was not tendered to the court for judicial action, the agreement was, like any other contract, non-modifiable except by a suit in equity for reformation and was enforceable only by a plenary suit at law for breach of contract. If the agreement did refer to judicial action and, by its terms, was not effective without such action, the agreement was treated as a mere stipulation, and the judicial action left the decree as the only enforceable document. If the agreement did not require judicial action for its effectiveness, the result turned on the language of the decree. If the decree merely 'approved' the agreement (whether or not the agreement was incorporated therein), it might or might not be modifiable but it was not enforceable by contempt, only by a suit at law for breach of contract. ⁴ If the decree, however, ordered the parties to comply with the terms of the agreement (as did the order herein involved), the agreement was 'merged' into the decree, leaving the decree as the only enforceable document, modifiable and enforceable by contempt. In case of a decree merely 'approving' the agreement, modifiability turned on whether the agreement was 'integrated'--I.e., the wife-support provisions were inextricably interwoven with the provisions for division of community property--or was 'non-integrated'--I.e., the wife-support provisions were separable from the provisions dealing with the division of community property. (See Family Law for Cal. Lawyers (C.E.B. Practice Handbook No. 5 1956), pp. 290--292 & 307--308; Propper, The Judgment of Dissolution and the Agreement-- Integration and Approval, 51 Los Angeles Bar J. 177 (1975).) The result was a constant stream of litigation wherein the courts were required to interpret language of agreements and decrees which were not always as clearly drawn as could be desired.

In 1967, in an attempt to simplify the problem, the Legislature amended section 139 of the Civil Code to provide (in pertinent part) as follows:

'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 as to any amount that may have accrued prior to the order of modification or revocation, and except to the extent that any written agreement, or if there is no written agreement, any oral agreement entered into in open court between the parties, specifically provides to the contrary. All such orders of the court for the support of the other party, even if there has been an agreement of the parties, may be enforced by the court by execution, contempt, or by such other order or orders as the court in its discretion may from time to time deem necessary.'

The effect of that amendment was to make all wife-support provisions of a property settlement agreement, whether or not merged, whether or not merely approved, and whether or not 'integrated' under the previous cases, both modifiable and enforceable by contempt.

When the new Family Law Act was adopted in 1969, to become effective on January 1, 1970, the Legislature adopted new section 4811 of the Civil Code, reading (in pertinent part) as follows:

'(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 as to any amount that may have accrued prior to the date of filing of the notice of motion or order to show cause to modify or revoke, and except to the extent that any written agreement, or if there is no written agreement any oral agreement entered into in open court between the parties, specifically provides to the...