*1044 Petitioner's wife secured in California absolute divorce previous to the taxable year. Decree provided that petitioner should pay alimony in fixed monthly amounts. Subsequent to decree of divorce petitioner and his former wife executed a written agreement whereby petitioner created an irrevocable trust in an agreed principal amount, the net income of which was payable currently to his former wife during her life, with remainder to their children. The trust instrument also provided that in certain contingencies payments from the trust principal should be made to the former wife. Petitioner retained no interest or power in respect of the trust or trust property. He did not guarantee income of the trust in any amount. The former wife in consideration of such trust provisions agreed that petitioner should be absolved from his obligation to pay alimony and from making any further contribution to her support. The former wife also consented that the divorce decree might be modified by eliminating the entire provision relating to alimony. Subsequent to the taxable year the decree was so modified. Held that under the law of California petitioner's obligation under the divorce*1045 decree to pay alimony was not abrogated by the inter partes agreements and that during the taxable year such obligation was a continuing one; held, further, that during the taxable year the trust was an instrumentality in the performance of petitioner's alimony obligation and that the income therefrom in such year was taxable to petitioner.
*93 This proceeding is for the redetermination of a deficiency in income tax for the calendar year 1935 in the amount of $202.60. The deficiency resulted from the addition of $6,382.49 by respondent to petitioner's income as returned by him for the taxable year. Of this amount $57.66 represents a net statement of profit realized on the sale of capital assets, and $6,324.83 represents income under an irrevocable trust created by petitioner for the benefit of his former wife, which respondent determined is taxable to petitioner. Error is assigned only as to the inclusion in petitioner's income of the latter item.
The facts are all stipulated. We set out herein only such*1046 of the facts as we deem necessary to a proper understanding of the question at issue.
FINDINGS OF FACT.
In April 1926 Katherine D. Innes, then the wife of the petitioner, brought an action for divorce against him in the Superior Court of *94 the State of California in and for the County of San Francisco. It is stipulated that no service of summons was had upon petitioner, and that he did not appear or authorize any one to appear for him in the action. And attorney at law who was associated in the practice of law with Katherine D. Innes' counsel in the case made an appearance in the divorce action for petitioner. It is stipulated that he had no authority to make such appearance.
The Superior Court entered its interlocutory decree in the divorce action, and on April 28, 1927, entered its final judgment, granting a divorce to Katherine D. Innes and also awarding to her the sum of $300 per month for her support and for the support and education of her then minor children, commencing on the first day of May 1926 and thereafter on the first day of each and every month until the further order of the court.
Early in the year 1935, petitioner notified Katherine D. Innes' *1047 attorneys that he intended to take all necessary steps to vacate and set aside such judgment in so far as it pertained to any sums of money ordered to be paid by petitioner for the support of Katherine D. Innes and her children. As a result of negotiations following such notification, agreements between the parties to the divorce action were reached, pursuant to which Katherine D. Innes on May 8, 1935, executed and acknowledged before a notary public a document which was thereafter filed in the divorce action. The document, omitting the preamble, signature, and certificate of acknowledgment, is as follows:
NOW, THEREFORE, in consideration of the premises and the payment by defendant for the account of plaintiff of the sum of Twenty-five Thousand Dollars ($25,000.00) receipt whereof is hereby acknowledged, full satisfaction is hereby acknowledged of a certain judgment rendered and entered in said Superior Court in the said action on the 28th day of April, 1927, in favor of Katherine D. Innes, plaintiff, and against Murray Innes, defendant, for the sum of $300.00 per month as a suitable allowance for the support of plaintiff and the support and maintenance of the children of plaintiff*1048 and defendant beginning May 1, 1926, and thereafter on the first day of each and every month until further order of the court, for costs in the sum of $20.00 and $100.00 attorney's fees, which judgment was recorded in Book 261 of Judgments, at page 496. And the plaintiff hereby authorizes and directs the Clerk of said Court to enter satisfaction of record of said judgment in the said action.
Except as hereinbefore specifically provided, said judgment of final decree of divorce shall remain in full force and effect.
It is further agreed that defendant may move the above entitled court for an order modifying said final decree of divorce and plaintiff does hereby consent that said final decree of divorce may be modified by striking therefrom the provision that defendant shall pay to plaintiff the sum of $300.00 per month as a suitable allowance for her support and the support and maintenance of the children of the parties hereto until further order of the court.
*95 On the date and in consideration of the execution of the foregoing document, and to further evidence the agreements resulting from such negotiations relative to the provisions for alimony in the divorce decree, *1049 petitioner and Katherine D. Innes, as parties of the first and second parts, respectively, executed an agreement in writing of which the parts material in our consideration here are as follows:
WHEREAS, two of the three children mentioned and described in the action for divorce have attained the age of twenty-one years, to-wit: Murray Innes, Jr. and William Beveridge Innes, and the third child is over the age of twenty (20), and will soon be of full age, and the parties hereto being desirous of settling their disputes and ending and discontinuing any further proceedings as well as ending and determining all proceedings which arose out of the said divorce action after the Final Decree referred to;
NOW, THEREFORE, it is agreed by and between the parties hereto as follows:
1. The party of the first part hereby agrees to pay, and does pay at the request of the party of the second part to the order of Murray Innes, Jr., the sum of twenty-five thousand dollars ($25,000.00) to be held, used and applied under the terms, trusts, and conditions hereinafter mentioned for the benefit of the said party of the second part and the children of the parties hereto as hereinafter described.
*1050 2. The said Murray Innes, Jr., shall take and hold the said moneys for investment from time to time in such securities and property as he, in his discretion and judgment may deem proper and for the best interest of the parties hereto,
* * *
He is hereby authorized and empowered to pay out of the said sum of twenty-five thousand dollars ($25,000.00) forthwith in cash, a sum or sums of money not exceeding the total sum of five thousand dollars ($5,000.00) as requested by the said party of the second part. The moneys remaining after the payment to the party of the second part just referred to shall be invested by him from time to time as he sees fit in his discretion, and thereafter during the life of the party of the second part he shall pay or cause to be paid to her or for her benefit or use the income thereof monthly or in such installments as the said Murray Innes, Jr., may, in his discretion, determine; provided, however, that if the income from said trust fund shall not total two hundred dollars ($200.00) per month, and said party of the second part shall be in need of additional sums for her support and maintenance and that of her children, and shall request it, said Murray*1051 Innes, Jr., is authorized, in his discretion, to pay to the party of the second part sufficient sums out of principal which, together with the income, will total two hundred dollars ($200.00) per month; provided, further, that in case of emergency resulting from traumatic injury or sickness of the party of the second part or of any of her children, said Murray Innes, Jr., is authorized, but not required, to pay additional sums out of the principal thereof in order to pay the expenses thereof.
Upon the death of the party of the second part, all unexpended part of the said fund shall be divided into three (3) equal parts, one part shall go to Murray Innes, Jr., another part to WILLIAM BEVERIDGE INNES, and the other part to LETITIA INNES. In case of the death of any of the said three children, leaving issue, the principal for the benefit of such child shall go to such issue. If such deceased child leaves no issue, his share of the principal shall go to the surviving children.
* * *
*96 4. The party of the second part hereby releases the party of the first part of and from all claims and demands of every name and nature including any claim or cause or causes of action*1052 in favor of herself or any of her children against the party of the first part, and covenants and agrees to obtain and procure from each and all of the said three children a general release to the party of the first part; and she further covenants and agrees to cause the dismissal, discontinuance and release of any action or proceeding now pending involving any claim for alimony or support for herself or support, maintenance and education for any of the said three children accrued or to accrue in the future, if any. Said party of the second part also covenants and agrees to consent to the making and entry of any Order or Decree in any action now pending to carry out the provisions of this agreement, including the entry of any order of Decree modifying or striking out from the Final Decree of Divorce of any provision for alimony, support, maintenance and education contained in said Final Decree of Divorce, and to make, execute and deliver all other necessary or proper papers or consents to carry out each and all of the provisions of this agreement.
5. * * * With respect to the trust estate created by this agreement and by the payment of said sum of twenty-five thousand dollars*1053 ($25,000.00) to said Murray Innes, Jr., as Trustee, and with respect to the income therefrom hereinabove provided to be paid it is made a condition thereof that neither the same, nor any interest therein, nor any part thereof, shall be subject to attachment, garnishment, sale on execution, or any bankruptcy proceedings, or other disposition by process of law; and further that no beneficiary under said trust shall have any right to sell, convey, assign, transfer, pledge, mortgage or otherwise anticipate or alienate any interest in or to said trust estate prior to the payment of the same to her or him by the said Trustee. And it is expressly provided that the said Trustee shall not pay any part of the income of said trust estate to any vendee, assignee, transferee or pledgee of any of the said beneficiaries, or to any person except a beneficiary or to a bank for the credit of a beneficiary.
* * *
7. In consideration of the execution of this agreement and of the payment of said sum of twenty-five thousand dollars ($25,000.00) as hereinabove provided, the party of the second part hereby releases and quitclaims to the party of the first part all of her claims of every kind and nature*1054 whatsoever to any property, either real or personal and whether separate or community property, now owned by the party of the first part or hereafter acquired by him; and hereby releases and waives all of her marital rights as to any property now owned or hereafter acquired by said party of the first part. It is the intention of the parties hereto to settle all property rights or claims of the party of the second part against the party of the first part; * * *
8. Concurrently with the payment of said sum of twenty-five thousand dollars ($25,000.00) to said Murray Innes, Jr., as hereinabove provided, the party of the second part agrees to execute and deliver to the party of the first part a duly acknowledged satisfaction of the provisions of the decree of divorce hereinabove referred to requiring the payment of money.
* * *
Murray Innes, Jr., accepted the trust. Upon the execution of such trust agreement and the acceptance of the trust thereunder by Murray Innes, Jr., Katherine D. Innes filed in the Superior Court which granted the decree of divorce the document hereinabove first set forth.
*97 On November 12, 1937, the following order modifying the final decree*1055 of divorce was made and entered by such Superior Court:
* * *
IT IS ORDERED that said decree of divorce be and the same is hereby modified by striking therefrom the following paragraph:
"It is further ordered, adjudged and decreed that defendant pay to plaintiff as a suitable allowance for her support, and the support, maintenance and education of said children, the sum of Three Hundred Dollars ($300.00) per month, beginning with the first day of May, 1926, and thereafter on the first day of each and every month until the further order of this Court."
The releases and quitclaims by Katherine D. Innes to petitioner of all of her claims of every kind and nature whatsoever to any property, either real or personal, whether separate or community property owned by him, and to her marital rights to any property referred to in paragraph 7 of the agreement of May 8, 1935, did not constitute a substantial consideration to the petitioner for entering into the agreement of May 8, 1935.
The terms of that agreement were carried out and thereafter the petitioner did not pay any money or deliver any other property to Katherine D. Innes. The income of the trust for the taxable year was*1056 $6,324.83 and was distributed according to the terms of the trust. No part of the amount was included by petitioner in his income tax return. Respondent added to petitioner's income for the taxable year the full amount of the trust income on the theory that it was devoted to the discharge of petitioner's legal obligations for the support of his former wife as decreed by the Superior Court of the State of California. Petitioner assigns such addition to his income as error.
OPINION.
HILL: The question presented is whether under the facts the income of the trust was devoted to the discharge of a legal obligation of petitioner and therefore taxable to him.
Consideration of petitioner's contentions involves the questions: (1) The validity of that part of the decree of divorce providing for payment of alimony; (2) assuming such validity, whether the obligation thus created was fully extinguished by executed agreements inter partes; and (3) whether such agreements in themselves constituted a continuing obligation of petitioner to contribute to his former wife's support of constituted a complete discharge of such obligation.
Under the law of California, as elsewhere, the*1057 obligation of a husband to support his wife ceases when the marital relation is terminated by absolute divorce, unless otherwise provided in the decree of divorce or by agreement of the spouses.
*98 On the basis of the stipulated facts that there was no service of summons on petitioner in the divorce action and no appearance by him or authorized appearance for him therein, petitioner contends that that part of the decree of divorce which provided for the payment of alimony was absolutely void for lack of jurisdiction and subject to collateral attack in this proceeding. He maintains that in all other respects the decree is valid. In other words, petitioner's contention is that the decree in question terminated the marriage relation but did not create an obligation of petitioner to contribute to the support of his former wife and that hence there existed no such obligation from and after the date of such decree. The respondent, on the other hand, says that if such decree was valid in part it was valid as to all of its terms and provisions and that the obligation imposed thereby on petitioner was being discharged by creation of the trust and the payment of the income thereof*1058 to petitioner's former wife. Respondent contends in the alternative that if such decree was void as to the provisions for the payment of alimony it was void in toto; that Katherine D. Innes, therefore, never ceased to be petitioner's wife and that under the law of California there was a continuing legal obligation on him to support her which was being discharged by the payment of the trust income to her.
The Superior Court of California is a court of general jurisdiction. Jurisdictional infirmity of a judgment of a court of general jurisdiction can not be exposed in a collateral proceeding by evidence exclusively outside of the judgment roll. If the judgment or the judgment roll did not disclose such infirmity, the judgment is binding until vacated in a proceeding for that purpose. "Where a court of general jurisdiction is required to exercise its powers upon facts proved before it, the proof is presumed to have been made, and such facts can not be collaterally attacked." 21 L.R.A. 854">21 L.R.A. 854, Note (see cases cited).
No part of the judgment roll in the divorce action is in evidence herein, but, in view of the stipulated fact that an attorney appeared for petitioner*1059 in the divorce action, although without authority so to do, it is fair to assume in the absence of a showing to the contrary that the divorce decree or the judgment record contained recitals or entries of facts necessary for jurisdiction of the person of petitioner in that action, or at least that the judgment roll therein did not disclose absence of such jurisdictional facts. "The general doctrine as established by the cases is that the attorney appearing in any action or suit is presumed to have full authority to do so until the contrary is proved." Williams v. Johnson,112 N.C. 424">112 N.C. 424; L.R.A. 848, Note. "And such presumption exists in all collateral proceedings." Osburn v. Bank of United States,22 U.S. 737">22 U.S. 737, 828. Cases cited in the above "note" support the text "That in the case of a decree judgment rendered *99 against a party who has no notice of the action, never appeared therein nor submitted to the jurisdiction of the court, the courts hold the judgment to be conclusive and free from collateral attack inter partes upon all matters mentioned in the record, until reversed or set aside on a writ of error." Also "Where there is*1060 want of jurisdiction in a decree judgment, the attack may be either by direct application to the court itself or by way of appeal." "Note", supra. McCahill v. Equitable Life Assurance Society of the United States,26 N.J.Eq. 531. "The decision of a court will not be incidentally impeached by extrinsic evidence showing that the record was false in regard to a material fact positively asserted, necessarily implied by it." "Note", supra, at page 854.
We have found nothing to indicate that the rule in California is different from that above stated. Chaplin v. Superior Court,81 Cal. App. 367">81 Cal.App. 367; 253 Pac. 954, is cited by petitioner to the point that a judgment in personam without jurisdiction of the person of the judgment debtor is void and subject to collateral attack in another proceeding. In that case the Supreme Court of California issued a writ of prohibition directed to the Superior Court enjoining the latter from enforcing a judgment for the payment of alimony, on the ground of the lack of jurisdiction of the person petitioning for the writ. Apparently the judgment record in that case either showed affirmatively*1061 lack of jurisdictional facts or that the judgment record failed to disclose facts upon which jurisdiction of the person of the defendant therein was based. As summarized in syllabus, the court held in that case that:
Defendant, who was not served and did not appear in divorce suit, may bring prohibition to obtain relief from order for payment of counsel fees and alimony, pending outcome, without making objection in court issuing order, since no preliminary objection is necessary where want of jurisdiction is apparent on the face of proceeding.
Under the state of the record and the facts in the instant proceeding we hold that petitioner can not in this proceeding impeach the validity in whole or in part of the judgment of the Superior Court of California in the divorce action and that for the purposes of this proceeding the judgment in question is in all respects valid and that the provision therein for the payment of alimony was an enforceable legal obligation of petitioner.
We have next for determination the question of whether the petitioner is taxable on the income during 1935 of the trust established in that year which was paid over to his wife for her support and maintenance. *1062 It results from our holding above that during the taxable year the divorce decree providing for the payment of $300 per month was valid and outstanding, representing a continuing obligation of the petitioner to pay out that amount. The effect on *100 that obligation of the agreement entered into by petitioner and his divorced wife in that year must be determined first under the applicable state law.
The following is provided in the California Civil Code:
SEC. 139. Support of children and wife on divorce for husband's offense: Modification of orders: Remarriage of wife, effect. Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life or for a shorter period as the court may deem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects.
Remarriage. Upon the remarriage of the wife, the husband shall no longer be obligated to provide for her support but such remarriage shall not affect his duty to provide for*1063 the maintenance of the children of his marriage.
The courts of California construing this statute have held that they are not bound in their allowance of alimony or any modification thereof by an agreement entered into by the parties fixing their obligations in this respect. In Moog v. Moog,203 Cal. 406">203 Cal. 406; 264 Pac. 490, the taxpayer and his wife had entered into an agreement in contemplation of divorce by which the wife had consented to accept alimony in a specified amount. The divorce court rejected the provisions of the contract and set the allowance for alimony at a greater sum than that agreed. On appeal from a judgment for the wife based on the amount allowed in the divorce decree the Appellate Court affirmed the judgment, even though the amount recovered in accordance with the decree exceeded that which the wife by contract had agreed to accept.
The case of Smith v. Superior Court,89 Cal. App. 322">89 Cal.App. 322; 264 Pac. 573, is particularly in point. There the husband and wife on the day of the granting of their decree of divorce, which fixed alimony at $100 per month, entered into an agreement by which the husband*1064 abandoned his plans for an appeal in return for his wife's relinquishment of her claims to alimony and support as provided in the decree. Approximately one year later, on October 21, 1927, the wife applied to the court for and received an increase to $175 per month of the alimony allowance. The wife instituted proceedings to enforce the increased alimony decree. The lower court adjudged the husband in contempt for his failure to make the payments required by the decree of October 21, 1927, notwithstanding the agreement reached on the day of the divorce. This judgment was affirmed by the Appellate Court, which said:
Agreements between the spouses relative to alimony or fixing by and between themselves the amount which the Court may allow are subject to the power of the Court, under sec. 139 of the Civil Code, to modify or wholly reject, as provided in said section [omitting citations]. *101 See also Roberts v. Roberts,83 Cal. App. 345">83 Cal.App. 345; 256 Pac. 826; Ex Parte Weiler,106 Cal. App. 485">106 Cal.App. 485; *1065 289 Pac. 645; Ettlinger v. Ettlinger,3 Cal.(2d) 172; 44 Pac.(2d) 540.
From the holdings of these cases we draw the conclusion that the petitioner in the instant case could not be the agreement entered into with his wife in 1935 discharge in any final way his obligation to pay alimony, and this is so even though the wife agreed to consent to the entry of an order striking from the decree the provisions relative thereto. It yet remained within the power of the court to reject the agreement of the parties if it considered the arrangement unfair and to make any alterations in the decree which the changed conditions of the parties required. This power of the court in the instant case remained in force during 1935 and at least down to the entry of the order in 1937. Cf. Ettlinger v. Ettlinger, supra.In this guise the situation before us is controlled by Helvering v. Fitch,309 U.S. 149">309 U.S. 149, and Helvering v. Leonard,310 U.S. 80">310 U.S. 80. In each of those cases, under the applicable state law, it appeared that the court granting the divorce retained sufficient power to make later modifications*1066 in the decree and thereby to alter the obligation which the taxpayer sought to discharge by the establishment of a trust. The taxpayer did not meet his burden of proof to show otherwise. The taxation of the income of the trusts to the settlor-taxpayer was sustained in both cases on the ground that the establishment of the trust was not shown to discharge absolutely and irrevocably the obligation of the taxpayer to support his divorced wife and that the trust income therefore was applied to his continuing obligation. Cf. Helvering v. Fuller,310 U.S. 69">310 U.S. 69. We think that is the situation in the present case.
It appearing that under the law of California the Superior Court has the power to enforce the existing provisions of its decree in respect to alimony, Moog v. Moog, supra, or to modify such provisions notwithstanding the agreement of the parties, Smith v. Superior Court, supra, it must be held that the provisions of the trust agreement did not operate to discharge petitioner's obligation to pay alimony, but that such obligation continued until its termination by the modification of the decree in the year 1937. The*1067 trust, therefore, operated in the taxable year as an instrumentality in the performance of petitioner's continuing obligation to pay alimony, thus rendering the income thereof taxable to petitioner under the authorities hereinabove cited.
In Helvering v. Leonard, supra, the Supreme Court said:
In Helvering v. Fitch, supra, we stated that where the divorced husband desires to avoid the general rule expressed in Douglas v. Willcuts, supra, he carries a distinct burden of establishing not by mere inference and conjecture but by "clear and convincing proof" that local law and the alimony trust have given *102 him a full discharge. We do not think that respondent has sustained that burden.
We, therefore, hold that petitioner is taxable on the 1935 income of the trust in question.
Decision will be entered for the respondent.