Plumer v. Plumer

TRAYNOR, J.

On September 22, 1954, plaintiff and defendant entered into an agreement “to effect a final and complete settlement of their respective property rights, support, alimony and custody of their child with reference to their marital status and to each other. ’ ’ Paragraph eight of the agreement obligates defendant to pay plaintiff $200 per month “for the support, maintenance, education, care and custody of said child until he shall reach the age of majority. . . .” Paragraph nine provides that defendant shall pay plaintiff an additional $200 per month “as alimony for her support and maintenance. ...” In paragraph twenty-three each party releases the other from all present and future claims and rights to support, separate maintenance, alimony, court costs, attorneys’ fees, and all property rights of any kind except as provided for in the agreement. Other paragraphs deal with the division of marital property, the payment of debts, future education of the child, and termination and modification of' the support provisions.

On November 1, 1954, an interlocutory decree of divorce was entered in plaintiff’s favor, approving the agreement and ordering the performance of its terms. A final decree was entered on November 10, 1955, incorporating the provisions of the interlocutory decree. Plaintiff has since remarried.

On December 21, 1955, defendant filed an order to show cause why the payments for support of plaintiff and the child should not be reduced on the ground that his income had materially decreased. Plaintiff moved to dismiss the order to show cause on the grounds that the payments were ordered pursuant to an integrated property settlement agreement and could be reduced only in conformity with the provisions of the agreement relating to modification and that these did not encompass a decrease in defendant’s income as a basis for modification. After referring the matter to a commissioner, who found in plaintiff’s favor, the court dismissed the order to show cause. Defendant appeals, contending that the agreement is not integrated and that even if it is, a material reduction in his income is a ground for modification within the express provisions of the agreement.

When an order for support payments in a divorce decree is based on an agreement of the parties, the possibility of subsequent modification of the order without the consent of both parties depends on the nature of the agreement. Prior to Adams v. Adams, 29 Cal.2d 621 [177 P.2d 265], the cases attempted to classify all separation agreements either as “property settlement” agreements or as “alimony” or “support and maintenance” agreements. (Ettlinger v. Ettlinger, 3 Cal.2d 172, 177-179 [44 P.2d 540]; Puckett v. Puckett, 21 Cal.2d 833, 841-842 [136 P.2d 1] ; Hough v. Hough, 26 Cal.2d 605, 614-615 [160 P.2d 15].) If the underlying agreement was a “property settlement” agreement, the “support” order could not be modified without the consent of the parties. (Ettlinger v. Ettlinger, supra, 3 Cal.2d at 177-178.) Conversely, if the underlying agreement was for “alimony” or “support and maintenance,” the support order was modifiable upon a showing of changed circumstances. (Hough v. Hough, supra, 26 Cal.2d at 612.) In Adams v. Adams, supra, 29 Cal.2d at 624-625, and in Dexter v. Dexter, 42 Cal.2d 36, 41 [265 P.2d 873], we recognized that hybrid agreements to settle not only property rights but rights and duties as to support are sui generis.

The parties are free to limit their agreement to property rights. They may, for example, agree to a simple division. Or they may agree that one party is to receive the lion’s share of the marital property and the other money payments, not in satisfaction of a statutory right to support, but solely to equalize the division of the marital property; such an agreement is a true property settlement unconcerned with rights and duties as to support. The court, therefore, may approve the agreement and in addition order the payment of alimony (Adams v. Adams, supra, 29 Cal.2d at 625), and such an order is subject to modification on an adequate showing of changed circumstances. (Civ. Code, §139.)

The parties are likewise free to limit their agreement to their rights and duties as to support. They may, for example, agree that the wife will receive specified money payments in lieu of the statutory right to support. Such an agreement is a true “alimony” or “support and maintenance” agreement, and under the rule of Hough v. Hough, supra, 26 Cal.2d 605, 612, a support order based thereon is modifiable on an adequate showing of changed circumstances.

Frequently, however, the parties enter into a hybrid agreement as in the Adams and Dexter eases and in Messenger v. Messenger, 46 Cal.2d 619 [297 P.2d 988]. The possibility of modifying an order for support based on such an agreement without the consent of the parties, depends upon whether the provisions for division of property and the provisions for support are severable rather than integrated. If they are integrated the order may not be modified unless the parties have provided for or agreed to such a modification. (Dexter v. Dexter, supra, 42 Cal.2d at 40.)

An agreement is integrated if the parties have agreed that the provisions relating to division of property and the provisions relating to support constitute reciprocal consideration. The support provisions are then necessarily part and •parcel of a division of property. Such an agreement would be destroyed by subsequent modification of a support order based thereon, without the consent of the parties. (Dexter v. Dexter, supra, 42 Cal.2d at 41-42; Messenger v. Messenger, supra, 46 Cal.2d at 626, 627-628; Herda v. Herda, ante, pp. 228, 231-232 [308 P.2d 705].) It is immaterial whether or not the marital property is divided equally. (Dexter v. Dexter, supra, 42 Cal.2d at 43; Messenger v. Messenger, supra, 46 Cal.2d at 627-628.) It is immaterial that the amount of the marital property is small. (Herda v. Herda, supra, ante, at p. 232.) It is likewise immaterial that the agreement calls for payments for ‘ ‘ support ” or “ alimony. ” (Messenger v. Messenger, supra, 46 Cal.2d at 624-625 and cases there cited.)

A support order based upon an integrated agreement, may be modified if the parties so provide. (Flynn v. Flynn, 42 Cal.2d 55, 61 [265 P.2d 865].) Absent such a provision, it cannot. An agreement providing that the purpose of the parties is to reach a final settlement of their rights and duties with respect to both property and support, that they intend each provision to be in consideration for each of the other provisions, and that they waive all rights arising out of the marital relationship except those expressly set out in the agreement, will be deemed conclusive evidence that the parties intended an integrated agreement. (Messenger v. Messenger, supra, 46 Cal.2d at 628; Anderson v. Mart, 47 Cal.2d 274, 279 [303 P.2d 539]; Herda v. Herda, supra, ante, at p. 232.) Even absent one or more of the foregoing provisions, there may be other proof that the parties intended an integrated agreement. (Dexter v. Dexter, supra, 42 Cal.2d at 41.) Thus, the parties may be uncertain as to the value or legal ownership of property. They may be uncertain which of them is entitled to a divorce and on what grounds and therefore uncertain as to their legal rights with respect to support and the division of property. An agreement for a specified division of property and specified support payments settling such uncertainties is integrated in the absence of convincing proof that the parties intended it to be severable. (See Dexter v. Dexter, supra, 42 Cal.2d at 43; Messenger v. Messenger, supra, 46 Cal.2d at 627-628.)

Under the foregoing rules the agreement in the present case is clearly integrated. It deals both with rights to marital property and rights to support. The parties have set forth their purpose “to effect a final and complete settlement of their . . . rights . . . with reference to their marital status and to each other.” They have released each other from all claims arising out of the marital relationship except as provided in the agreement. The inference is clear that the parties intended an integrated agreement. It is not necessary that the parties expressly recite such an intent when the agreement itself makes the intent clear. (Dexter v. Dexter, supra, 42 Cal.2d at 41.)

Our conclusion that the agreement is integrated, however, does not dispose of the case, for, as noted earlier, an order for support based upon an integrated agreement may be modified if the parties have expressly so provided. (Flynn v. Flyrm, supra, 42 Cal.2d at 61.) Paragraph ten of the agreement provides: “For purposes of this agreement no earnings of Wife or other income obtained by her shall be considered as a ‘changed (Condition’ and taken into consideration in connection with any attempt of Husband to obtain a reduction in payment for support of Wife or said child, . . . except such portion of said earnings or other income as shall exceed the gross average monthly sum of Two Hundred Fifty Dollars. . . .” Both parties concede that this part of the agreement provides for modification of the court’s support orders. Plaintiff contends, however, that the provision should be read as recognizing only a single ground for modification, namely, earnings or other income obtained by plaintiff in excess of an average of $250 per month. The plain language of the provision, however, indicates that the parties contemplated modification upon an adequate showing of changed circumstances with a single limitation, that so long as plaintiff’s earnings or other income did not exceed the monthly average of $250, any increase in her income would not be considered a changed condition. We conclude, therefore, that upon a proper showing of a material reduction in defendant’s income, the trial court may in its judicial discretion modify its order requiring payments for the support of plaintiff and the child.

Plaintiff contends that a reduction in the amount of the payments for her support would violate a provision found in paragraph nine of the agreement, which reads: “Husband’s obligation to pay said alimony to Wife shall cease upon her death or remarriage, except that in the case of her remarriage said payments shall be continued until five (5) years from September 25, 1954, notwithstanding the fact that Wife may have remarried within said period of time.” This provision, however, deals only with the termination of support payments, not with their modification. It provides only that ‘ ‘ payments ’ ’ shall continue, and a reduction in the amount of the payments pursuant to paragraph ten will not violate its terms.

The order dismissing defendant’s application for modification of the decree is reversed for proceedings consistent with this opinion.

Gibson, C. J., Spence, J., and McComb, J., concurred.

Shenk, J., and Schauer, J., concurred in the judgment.