Opinion
10-9-1952
SMITH v. SMITH. * Civ. 19040.
Jesse Blattel, Beverly Hills, for appellant. Erb, French & Picone, Beverly Hills, for respondent.
SMITH
v.
SMITH. *
Oct. 9, 1952.
Hearing Granted Dec. 4, 1952.
Jesse Blattel, Beverly Hills, for appellant.
Erb, French & Picone, Beverly Hills, for respondent.
FOX, Justice.
The parties were formerly husband and wife. They separated, however, in May, 1946. A property settlement agreement was executed by the terms of which the wife waived all right to alimony. She then commenced an action for divorce, the complaint reciting the execution of the agreement, and praying that it be approved by the court, except the provision re alimony. She further prayed for token alimony. Defendant was personally served with summons and complaint, but defaulted. An interlocutory decree of divorce was granted plaintiff in January, 1947. The court approved the property settlement agreement but added a provision requiring defendant to pay plaintiff $1.00 per month for her support until further order of the court. In November, 1951, plaintiff sought a modification of the interlocutory decree praying that she be awarded $100 per month for her support. The court, in effect, sustained an objection to the introduction of any evidence and denied plaintiff's motion for modification. It is from this order that plaintiff appeals.
Property settlement agreements are sanctioned by the Civil Code, secs. 158 and 159 and occupy a favored position in the law of this state. Hill v. Hill, 23 Cal.2d 82, 89, 142 P.2d 417. A property settlement agreement, therefore, that is not tainted by fraud or compulsion and is not in violation of the confidential relationship of the parties 'is valid and binding on the court.' Adams v. Adams, 29 Cal.2d 621, 624, 177 P.2d 265, 267; Verdier v. Verdier, 36 Cal.2d 241, 247, 223 P.2d 214; Viera v. Viera, 107 Cal.App.2d 181, 183, 236 P.2d 632. Public policy requires the protection of the wife, hence in a divorce action the court may award her necessary alimony, Civ.Code, sec. 139. 'Such discretion, however, does not empower the trial court to modify valid agreements of the parties pertaining to the division of their property. The court cannot * * * purport to approve the agreement and at the same time order payment of support and maintenance contrary to its terms.' Adams v. Adams, supra, 29 Cal.2d 627, 177 P.2d 269.
Here plaintiff alleged the execution of the property settlement agreement, and sought its approval by the court. Thus since there was no attack upon the agreement it was binding upon the parties and 'stood in the way * * * of any judgment for plaintiff's support contrary to or inconsistent with its provisions, and the court could not properly ignore its existence.' Majors v. Majors, 70 Cal.App.2d 619, 626, 161 P.2d 494, 497; Patton v. Patton, 32 Cal.2d 520, 524, 196 P.2d 909; Verdier v. Verdier, supra, 36 Cal.2d 247, 223 P.2d 217, 218. The court cannot, as was attempted here, approve the agreement and at the same time order payment of alimony contrary to its terms. Adams v. Adams, supra, 29 Cal.2d 627, 177 P.2d 268, 269; Verdier v. Verdier, supra, 36 Cal.2d 247, 223 P.2d 217, 218. Therefore, the court was not empowered to add a provision for even token alimony for that would be changing basically the agreement of the parties, Adams v. Adams, supra, 29 Cal.2d 625, 177 P.2d 267, 268, since plaintiff had waived all support and maintenance, which she had a right to do. Adams v. Adams, supra, 29 Cal.2d 626, 177 P.2d 268; Patton v. Patton, supra, 32 Cal.2d 523, 196 P.2d 910.
Plaintiff, however, contends this is a collateral attack on a final judgment. The answer to this contention is found in Tuttle v. Tuttle, 38 Cal.2d 419, 240 P.2d 587. In that case the decree included certain provisions regarding the property of the parties and required the husband to make monthly payments to the wife of a specific amount for eight years. Before the expiration of that time she moved to modify the final decree so as to increase the amount of the monthly payments to her. The court determined the payments to her were not alimony but an integral part of the settlement of their property rights and therefore denied her motion. It is pointed out, 38 Cal.2d at page 421, 240 P.2d at page 589, that the trial court had jurisdiction to determine whether the decree was based on a property settlement agreement with payments provided as a phase of property adjustment and therefore not subject to modification, or was based upon support provisions of the agreement and therefore subject to modification. The court thereupon concluded, 38 Cal.2d at page 422, 240 P.2d at page 590, that Mr. Tuttle was not making a collateral attack upon the decree but was relying upon it and 'the record in the original proceeding which clarifies its provisions.' So, here the trial court's examination of the original file disclosed that the judgment which was ambiguous on its face was, in fact, based on the property settlement agreement and was therefore not subject to modification, Puckett v. Puckett, 21 Cal.2d 833, 840, 136 P.2d 1; Fields v. Fields, 94 Cal.App.2d 56, 58, 209 P.2d 977, hence the denial of plaintiff's motion.
The order is affirmed.
MOORE, P. J., and McCOMB, J., concur. --------------- * Subsequent opinion 254 P.2d 1.