Messenger v. Messenger

• Decision Date: 06 June 1956
• Citation: 297 P.2d 988,46 Cal.2d 619
• Court: California Supreme Court
• Parties: Bertha J. MESSENGER, Plaintiff and Appellant, v. Thomas T. MESSENGER, Defendant and Respondent. L. A. 23276.

Page 988

297 P.2d 988

46 Cal.2d 619

Bertha J. MESSENGER, Plaintiff and Appellant, v. Thomas T. MESSENGER, Defendant and Respondent.

L. A. 23276.

Supreme Court of California, In Bank.

June 6, 1956.

James A. Moore, Oceanside, and Geo. A. Westover, San Diego, for appellant.

George C. Hadley, R. B. Pegram, Herbert J. Williams, Albert J. Day, Los Angeles, and Joseph A. Montoya, Northridge, for respondent.

TRAYNOR, Justice.

Plaintiff and defendant were married in 1936 and separated in 1950. On January 3, 1951, they executed a property settlement agreement. Thereafter plaintiff filed a complaint for divorce, and on January 8, 1951, an interlocutory decree was granted to her on the ground of extreme cruelty. The decree approved and incorporated by reference the provisions of the agreement and expressly ordered defendant to pay $500 per month 'as agreed in said property settlement agreement.' The final decree was entered on January 16, 1952.

In December, 1953, plaintiff applied for an order of execution for claimed arrearages of $6,700 plus interest and secured an order to show cause why defendant should not be held in contempt for failing to make the overdue payments. Defendant then secured an order to show cause why the payments provided for in the decree should not be reduced to $300 per month. The three matters were heard together, and the trial court entered judgment reducing the monthly payments and finding that defendant was not in contempt for failure to make the overdue payments. The court also concluded that an execution should not be issued against the defendant, on the grounds that he 'has no properties or monies against which such execution could be successfully levied, that the only manner in which such execution could be served would be by placing a constable in charge of the daily receipts of the defendant; and, as the defendant is a professional man, this Court finds that such an action would result in considerable discredit to the defendant; and the court further believes that, if such action were taken, that the earning ability of the defendant (as a physician and surgeon) would be reduced to such a degree that it would materially affect the ability of the defendant to pay to the plaintiff the reduced alimony as set by this Court.' The court ordered that the property settlement agreement be amended to provide for the payment of $375 per month, and income tax on an income of $4,500 per year instead of $500 per month and income tax on an income of $6,000 per year. It found that the amount due plaintiff from defendant to March 10, 1954, was $5,668 and ordered defendant to pay $800 on or before that date and $50 per month in addition to the reduced alimony payments to be applied on the balance due. The issuance of execution was suspended so long as defendant made these payments, but in the event of default, an execution was to issue forthwith.

Plaintiff appeals. She contends that the provisions for monthly payments and income tax payments were an integral and inseparable part of the property settlement agreement of the parties and are therefore not subject to modification.

In their agreement the parties provided:

'Whereas, the parties hereto are husband and wife, and that said parties hereto have agreed to divide all property and property rights between them; and

'Whereas, said parties do not make any arrangement or arrangements as to any divorce proceedings by either of the parties to this agreement, leaving the determination of such action to the Court, but make and enter into this agreement for the purpose of fixing and adjusting their personal and property rights; and

'Whereas, the (husband) has represented that he has fully disclosed to the (wife) all of the community property of every kind and nature, and that the same is being and has been divided as between the parties under the terms and conditions of this agreement as hereinafter set forth.

'Now Therefore, for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature, whether separate or community property, they hereby mutually covenant and agree, each with the other as follows, to wit:'

Paragraphs 1 and 2 then provided for a division of the property, and in the present proceeding the trial court found that plaintiff received property worth $32,850 and that defendant received property worth $31,375.

Paragraph 3 provided 'That the husband agrees to pay to the wife for her care, maintenance and support, the sum of Five Hundred ($500.00) Dollars per month, payable monthly in advance, commencing on January 3rd, 1951, receipt of which first month's alimony is hereby acknowledged, such obligation to pay to continue until the wife dies or remarries.'

Paragraph 15 provided 'That the husband agrees that from date hereof he will pay to the wife a sufficient amount over and above the Five Hundred ($500.00) Dollars per month alimony, herein agreed to be paid, to pay the income tax, if any, to be paid by the wife on said alimony payment. * * *'

The agreement also provided that 'It is further understood and agreed that the wife waives, relinquishes, abandons, and releases all of her right, title and interest in and to any and all property which is hereinbefore agreed shall be set apart to and become the property of the husband, and to any and all property of every nature which said husband now has or that he may hereafter acquire or own, and all right to future maintenance and support from or by the said husband, except as herein otherwise expressly provided, and hereby waives, relinquishes and releases all right to inherit any property whatsoever which said husband now owns or possesses or which he may hereafter own or possess, or of which he may die seized or possessed, and all property which is hereinbefore set apart to him shall be and remain forever as between the parties hereto the separate property of the husband.' A similar provision related to the husband, except that his waiver of all right to future support and maintenance was not qualified by the clause, 'except as herein otherwise expressly provided.'

Plaintiff's complaint referred to the $500 per month payments as alimony and prayed that the court approve the property settlement agreement, make it part of the decree, and order defendant to pay $500 per month 'for the care, maintenance and support of the plaintiff, as therein agreed.' The interlocutory decree approved the agreement, made it part of the decree by reference, and expressly ordered defendant to pay $500 per month 'for the care, maintenance and support of the plaintiff, as agreed in said property settlement agreement.' The final decree provided that 'It is further ordered and decreed that wherein said interlocutory decree makes any provision for alimony' said provision 'be and the same is hereby made binding on the parties affected thereby the same as if herein set forth in full, and that wherein said interlocutory decree relates to the property of the parties hereto, said property be and the same is hereby assigned in accordance with the terms thereof to the parties therein declared to be entitled thereto.

'It is further ordered adjudged and decreed, that the community property of the parties hereto is ordered divided, in accordance with the property settlement agreement approved in the Interlocutory Decree entered herein and the order for support payments as are provided for therein are hereby ratified and confirmed.'

Since the final decree merely confirms the provisions of the interlocutory decree and the property settlement agreement, and since the interlocutory decree ordered that the payments be made 'as agreed in said property settlement agreement,' we must examine the agreement to determine whether the provisions for monthly payments and income tax payments are separable from the provisions that divide the property, or whether they are an integral and inseparable part of the division of property and therefore an inseparable part of the consideration for the property settlement. If they fall into the latter category they cannot now be modified. Dexter v. Dexter, 42 Cal.2d 36, 40-41, 265 P.2d 873; Adams v. Adams, 29 Cal.2d 621, 625, 177 P.2d 265.

In support of his contention that the provisions fall within the former category defendant stresses the fact that the monthly payments for the wife's support are expressly referred to in paragraphs 1(h), ¹ 3, ² and 15 ³ as alimony and have one of the principal characteristics of alimony in that they terminate if the wife dies or remarries. Similar contentions were rejected in Dexter v. Dexter, 42 Cal.2d 36, 41, 265 P.2d 873, 876, ⁴ and in Fox v. Fox, 42 Cal.2d 49, 52-53, 265 P.2d 881, 883, ⁵ where it was pointed out that the labels adopted by the parties are not conclusive and that it is not controlling that the monthly payments for support have some of the indicia of alimony.

In this case as in Fox v. Fox, supra, Dexter v. Dexter, supra, Flynn v. Flynn, 42 Cal.2d 55, 60-61, 265 P.2d 865, and Finnegan v. Finnegan, 42 Cal.2d 762, 765, 269 P.2d 873, the parties have made the provision for support an integral part of their property settlement agreement. Not only did they 'enter into this agreement for the purpose of fixing and adjusting their personal and property rights' but they made the provisions for support 'an inseparable part of the consideration for the property settlement,' Dexter v. Dexter, supra, 42 Cal.2d at pages 41-42, 265 P.2d at page 876, by expressly agreeing that the support and maintenance provided in paragraph 3, like the division of property provided in paragraphs 1 and 2, was 'for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature, whether separate or community property. * * *'

Moreover, as in Fox v. Fox, supra, 42 Cal.2d at page 52, 265 P.2d at page 883, the wife waived 'all right to...