McReynolds v. McReynolds

• Decision Date: 26 July 1963
• Citation: 32 Cal.Rptr. 462,218 Cal.App.2d 683
• Court: California Court of Appeals Court of Appeals
• Parties: Jeanne McREYNOLDS, Plaintiff and Appellant, v. R. C. McREYNOLDS, Defendant and Respondent. Civ. 26922.

Page 462

32 Cal.Rptr. 462

218 Cal.App.2d 683

Jeanne McREYNOLDS, Plaintiff and Appellant, v. R. C. McREYNOLDS, Defendant and Respondent.

Civ. 26922.

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

July 26, 1963.

Hearing Denied Sept. 18, 1963.

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

Frank H. Whittemore, La Jolla, for respondent.

HERNDON, Justice.

Plaintiff wife appeals from an order denying her application for modification of the provisions of the interlocutory and final judgments of divorce relating to the payments required of defendant for the support of the minor son of the parties, who was born on September 13, 1945. Appellant also complains of that portion of the order which, although it denies the husband's request for a change in that portion of the judgment awarding custody of the child to appellant, requires appellant to provide the child with certain psychotherapy treatments without any specific provision as to which of the parties is to bear the cost thereof.

Appellant was granted an interlocutory judgment of divorce on August 1, 1949, and a final judgment of divorce on November 1, 1950. Although appellant was given custody of the minor child, neither judgment makes any provision for support payments either for appellant or for said child. The interlocutory judgment provides that 'the Separation Agreement between the parties dated June 30, 1949, is ordered to be filed as plaintiff's Exhibit '1',' but the terms and conditions thereof are neither approved, ordered complied with, nor even referred to, in the judgment.

Therefore, under established California law, regardless of whether or not the separation agreement be deemed 'integrated', the court, having made no provision for alimony payments in either of said judgments, is now wholly without power to order any such payments. (Dexter v. Dexter, 42 Cal.2d 36, 42, 265 P.2d 873; Puckett v. Puckett, 21 Cal.2d 833, 841, 136 P.2d 1; Harlan v. Harlan, 154 Cal. 341, 348, 98 P. 32; McClure v. McClure, 4 Cal.2d 356, 359, 49 P.2d 584, 100 A.L.R. 1257; Tolle v. Superior Court, 10 Cal.2d 95, 97, 73 P.2d 607.)

This rule, however, does not apply to the obligation of the father to support his minor child. The court has the inherent power to make appropriate orders in this regard notwithstanding the silence of the interlocutory and final judgments of divorce on the subject. (Krog v. Krog, 32 Cal.2d 812, 817, 198 P.2d 510; Puckett v. Puckett, supra, 21 Cal.2d p. 841, 136 P.2d p. 5; Lewis v. Lewis, 174 Cal. 336, 338, 163 P. 42.) Contractual arrangements between the parties regarding their respective obligations to support their minor children are not binding upon the child or the court. (Plumer v. Superior Court, 50 Cal.2d 631, 637, 328 P.2d 193; Young v. Superior Court, 105 Cal.App.2d 65, 68, 233 P.2d 39; Rosher v. Superior Court, 9 Cal.2d 556, 559-560, 71 P.2d 918; but may be binding upon the parties, inter se, Van Dyke v. Van Dyke, 126 Cal.App.2d 238, 244, 271 P.2d 910; Hunter v. Hunter, 170 Cal.App.2d 576, 583, 339 P.2d 247.)

The separation agreement entered into between the parties in the instant action provides in part: 'This agreement is made with reference to the following facts: * * * It is the mutual desire of the parties to effect a final and complete settlement of their respective property rights, as such rights relate to each other and to their marital status, and, as well, a complete settlement of their respective rights to support and maintenance. Certain community property is owned by the parties and, notwithstanding anything hereafter to the contrary, the wife, upon advice of counsel, intends to waive her rights therein except as otherwise herein specifically provided, in consideration of the transfer to her of the property which is to be transferred to her by the specific provisions hereof and the money payments to be made to her by the husband as herein provided * * *.

'In consideration of the foregoing facts and the promises hereinafter contained on the part of the respective parties hereto, it is agreed: * * * It is further here asserted that the money or property to be hereafter transferred to the wife, pursuant to this agreement will be so transferred to her with the understanding that out of said money or property she shall provide for and maintain to the extent that such support is required in addition to that supplied by the payments made for said child under the provisions of paragraph 7 hereof. (Emphasis added.)

'Each of the parties, in consideration of the agreements herein of the other party, hereby waives, releases and relinquishes to the other all claims or other rights he or she may now have or might hereafter otherwise acquire against the other, which arise or might arise out of the marital relationship * * *

'Each party expressly waives and relinquishes forever any right to support in any amount from the other, except as herein particularly provided, * * *

'* * * At any time when the husband is not making payments as aforesaid upon said existing bank indebtedness and/or said existing income tax obligations, the husband agrees to pay to the wife for her use and benefit for and during her life or until she remarries, a sum equal to twenty per cent (20%) of his annual gross income, and, in addition, the husband agrees to pay to the wife an amount equal to ten per cent (10%) of the husband's annual gross income for the maintenance of said minor child, herein sometimes referred to in the aggregate as the '30%'. The payments to be made as herein provided for the maintenance of the said child shall continue until the death of the husband * * *. ¹

'In no event shall any monthly payment in connection with said '30%' be less than Two Hundred Fifty Dollars ($250.00) per month, provided, however, that the payments of the said '30%' as herein contemplated shall in no event exceed the sum of Fifty-Four Hundred Dollars ($5400.00) per annum. No monthly payment shall exceed the sum of Four Hundred Fifty Dollars ($450.00) per month, except in connection with the annual adjustment to be made prior to January 30th of each year. If the wife remarry or die, the 10% herein provided to be paid to, or for the benefit of, the child of the parties, shall in no event exceed the sum of One Hundred Fifty Dollars ($150.00) per month, nor shall any such monthly payment be less than Eighty-Five Dollars ($85.00) per month. The payments contemplated by this paragraph shall be made monthly on the first of each and every month commencing as of the date of the execution of this agreement * * *.'

Therefore, the sole problem presented to the trial court was whether, under the terms of this property settlement agreement, the wife was entitled to have the interlocutory and final judgments of divorce so modified as to compel respondent to pay appellant a larger aggregate amount than $450 per month without any showing whatsoever that the needs of the child exceeded said sum. Under the settled rules above set forth, the court could modify the judgments to require additional payments for child support, and could require a payment for this purpose exceeding the amount agreed upon between the parties if the needs of the child so required.

But, in the instant case, appellant's agreement to use her share of the payments received from the husband to meet the needs of the child, makes it necessary for her to make some showing that the total of these payments is inadequate to meet these needs.

Appellant's application for modification was submitted upon her affidavit that the needs of the child totalled approximately $370 per month, excluding an unspecified amount for the cost of psychotherapy, and there was a stipulation that the contents of the affidavit might be deemed to be her testimony in support of her motion. In the light of the record before it, and the nature of appellant's motion, the determination made by the trial court was correct.

Appellant never has attacked the agreement upon the ground that it is inequitable, nor has she alleged that it was obtained by any improper means. ² She makes no such attack upon it in this...