Opinion
11-17-1949
VERDIER v. VERDIER. Civ. 14127.
VERDIER
v.
VERDIER.
Nov. 17, 1949.
Hearing Granted Jan. 12, 1950. *
Morgan J. Doyle, J. Joseph Sullivan, San Francisco, attorneys for defendant and respondent.
James M. MacInnis, Hallinan, MacInnis & Zamloch, San Francisco (William F. Cleary, San Francisco, of counsel), attorneys for plaintiff and appellant.
NOURSE, Presiding Justice.
Plaintiff, wife, appeals from an order discharging an order to show cause why defendant should not pay her support pendente lite, travel expenses to attend hearings, attorney's fees and further interim relief. On October 8, 1948, she filed a complaint entitled 'For Maintenance, Division of Community Property, and Other Relief,' in which she alleged in substance, that the parties married on December 27, 1918; that on January 10, 1937, they entered into an agreement, appended to the complaint as Exhibit A, in which they agreed among other things that they would live separate and apart and that the husband would pay the wife for her support and maintenance $500 monthly, and, in case his income increased, then he should pay one-half of such increase; that since then the parties had been living separate and apart; that during that time according to plaintiff's information and belief defendant's income had increased but that he failed to pay the sum of $500 per month in full so that in March, 1942, $3000 or more was unpaid; that defendant falsely represented to plaintiff at that time and repeatedly thereafter that he was unable to pay more than approximately $250 per month and refused to give any further information with respect to his income and financial position; that on May 11, 1946, the arrears amounted to $20,000 or more and that on that date plaintiff, who had no separate income, was induced by the false representations of defendant and by her lack of funds and means of support to sign an agreement, appended to the complaint as Exhibit B, which amended the agreement of January 10, 1937, among other things in that the monthly payment for support was reduced to a fixed amount of $400 and that plaintiff would be paid $10,000 in full discharge of existing arrears; that in the agreement Exhibit B defendant agreed to cause Joseph R. Bearwald and Suzanne de Tessan to guarantee the monthly payments of $400 but that plaintiff never received a guaranty signed by said Bearwald and is informed that Bearwald never executed such document; that from May 11, 1946, until July, 1948, defendant paid $400 a month since that date refuses to pay any sum whatsoever; that if Exhibit B became a contract plaintiff has elected to rescind it without waiver of other grounds of attack on it; that accumulation of community property was made during the marriage of the parties, with respect to which defendant failed to account to plaintiff and an audit will be necessary; that plaintiff has exhausted all her resources and has no income or property or other means of support to provide for herself and to maintain this action; that according to her information and belief defendant has ample means with which to enable her to do so, but that she is ignorant of his income, resources and community property, so that an auditor will have to be employed. On these grounds she prayed for judgment determining the community rights of the parties, disposing of said community property and providing for the permanent support and maintenance of plaintiff, for cancellation of the agreement Exhibit B and for interim relief consisting of $250 travelling expenses of plaintiff from New York to San Francisco; $1000 per mouth for support and maintenance; $1000 on account of expenses of the action; $1500 on account of auditor's fees and $5000 on account of attorney's fees. An injunction also prayed for is not here involved.
It may be pointed out that, although the validity of the original agreement (Exhibit A) is not attacked as is the case with the amending agreement (Exhibit B), the prayer is not for specific performance of the original agreement but for 'permanent support and maintenance' is mentioned in § 137 of the Civil Code. In response to an order to show cause why the interim relief prayed for should not be granted defendant filed a return stating that the court is without power or jurisdiction to order the payment of any support, costs or fees pendente lite in this action, that both agreements (Exhibits A and B) were prepared by plaintiff's attorney and that the same attorney as her agent consented to the reduction of the monthly payments to $250 from March, 1942, to May, 1946; that the reason for the signing of the amending agreement (Exhibit B) was a severe illness of defendant, which incapacitated him for many months and threatened to cause his death; that the payments of $400 monthly in accordance with the amended agreement had been made and accepted regularly until July 30, 1948, but that the next three payments were prevented by garnishments and attachments of all money owed by defendant to plaintiff for a sum of $1,232.74, which writs caused defendant to pay three amounts of $400 each to the sheriff; that defendant never defaulted in the payments in accordance with the amended agreement and paid or advanced plaintiff moreover several additional amounts; that he also paid $15,000 concurrently with the signing of the agreement Exhibit B, instead of the amount of $10,000 provided for in that agreement; that the signature of Bearwald to a guaranty was not procured because plaintiff waived it.
By these pleadings the present effectiveness of and compliance with both agreements were put in issue, plaintiff contending that the agreement Exhibit B was void, incomplete and rescinded, and the original agreement (Exhibit A) unchanged but not complied with either before or after May, 1946, defendant contending that the original agreement was twice validly amended and as amended complied with.
At the hearing as well as on this appeal defendant took the position that the court lacked jurisdiction to grant any interim relief on the ground that the parties were living separate and apart by virtue of the agreement Exhibit A, the validity of which is not attacked, and that then according to § 175, Civil Code, the wife has no right to support other than that stipulated in the contract, and in case of violation only an action on the contract in which no relief pendente lite can be granted as in an action for separate maintenance. He moreover contended that the contract was not violated as payment was prevented by the garnishment and attachment. It was, however, brought out that the alleged garnishment was for a claim of 'The City of Paris' of which defendant was a director and plaintiff offered to prove collusion and bad faith in that respect. The court stated repeatedly that the question before it was whether or not the court had jurisdiction to award relief pendente lite where the parties were living separate and apart and the support was provided for by agreement; that plaintiff was seeking to enforce the provision of the original agreement in accordance with § 175, Civil Code, and that where an existing agreement was not attacked the recent Supreme Court case of Patton v. Patton, 32 Cal.2d 520, 196 P.2d 909, prevented relief pendente lite. It is therefore clear that when the court discharged the order to show cause it did not deny relief pendente lite in the exercise of its discretion but held as a matter of law that it lacked jurisdiction to grant such relief under the circumstances of this case, the correctness of which holding we must review.
The question in how far the existence of a separation agreement providing for support of the wife prevents the institution of an action for permanent maintenance and support and the granting of relief pendente lite seems not to have been decided before in this State. The decision in other jurisdictions are somewhat conflicting. See annotation 6 A.L.R. 75 et seq.; 42 C.J.S., Husband and Wife, § 612, page 211; 27 Am.Jur. 20. It is mostly held, as in Bailey v. Dillon, 186 Mass. 244, 71 N.E. 538, 66 L.R.A. 427, that if such an agreement is freely and fairly entered into and is still in force it operates as a bar to an action of the wife for separate maintenance. However, it has also been held that such an agreement does not deprive the court of power to take cognizance of an action for separate maintenance and support but that the agreement must be considered with all other circumstances as basis for the decision. Bradford v. Bradford, 296 Mass. 187, 4 N.E.2d 1005. It is generally held that when a separation agreement providing for the support of the wife has been broken or repudiated by the husband it is not a defense to a wife's suit for separate maintenance. Cram v. Cram, 116 N.C. 288, 21 S.E. 197; Walker v. Walker, 125 Md. 649, 94 A. 346, 350, Ann.Cas.1916B, 934; Scheinkman v. Scheinkman, 64 Misc. 443, 118 N.Y.S. 775. That a separation agreement procured by fraud or overreaching cannot constitute such a defense is obvious. In that respect the question could be only whether, as contended by respondent, such an agreement if not invalid on its face would bar a separate maintenance action and interim relief until it was declared invalid by the court. In Daniels v. Daniels, 9 Colo. 133, 10 P. 657; State ex rel. Turner v. Paul, 182 Wash. 261, 46 P.2d 1060; and Wilkinson v. Wilkinson, 130 N.J.Eq. 65, 20 A.2d 417, it was held that the existence of a separation agreement attacked in the separate maintenance action itself on the ground of fraud or coercion did not prevent the granting of relief pendente lite prior to the decision as to the validity of the agreement. It has been held that if the action instituted by the wife is for the enforcement of the support provisions of the separation agreement as such she is not entitled to the relief pendente lite allowable in actions for divorce or separate maintenance, 42 C.J.S. Husband and Wife, § 607, page 196; Hite v. Hite, 142 Ky. 283, 134 S.W. 138; Phillips v. Peacock, 63 Misc. 520, 117 N.Y.S. 625. The latter case expressly points out the distinction that if the wife notwithstanding the existence of a contract elects to stand on her rights to support as a wife, relief pendente lite could be granted.
On the basis of the above authorities from other jurisdictions it would seem that the court had the power to grant the relief pendente lite prayed for. As already pointed out, the action instituted is one for permanent support and maintenance in an amount left to the discretion of the court, not for the enforcement of the separation agreement in the amount stipulated. The complaint contains the necessary allegations for an action of the former kind by showing the marriage, and the ability and deliberate failure of the husband to provide for the wife. The cases cited recognize the right to relief pendente lite in such action. According to these authorities neither of the two agreements (Exhibit A and B) can be considered to bar such action or relief pendente lite so long as the issues raised by the allegations that neither was duly performed by defendant and that the latter moreover was void had not been tried and decided by the court.
We find nothing in our statutory or case law contrary to these conclusions. Section 137 of the Civil Code permits the wife to maintain an action for permanent support and maintenance without applying for a divorce 'when the husband wilfully fails to provide for the wife'. The same section empowers the court to grant her in its discretion during the pendency of such action amounts necessary for alimony, costs of action or attorney's fees. The complaint taken in its entirety sufficiently alleges facts which if true constitute wilful failure to provide for the wife, unless under the circumstances alleged the husband would be under no duty to support her, in which case the failure to provide would not be wilful. 1 Cal.Jur. 1027. It has been held that a wife living separate and apart from her husband by an agreement which does not provide for her support can not maintain an action for permanent support and maintenance, Jenny v. Jenny, 178 Cal. 604, 174 P. 652; Mayr v. Mayr, 161 Cal. 134, 118 P. 546, in accordance with the rule of § 175, Civil Code, providing that the husband is not liable for the support of the wife 'when she is living separate from him, by agreement, unless such support is stipulated in the agreement.' However, this same provision clearly implies that when support is stipulated, as in the case before us, the husband is liable for support; his failure to provide it can thus be wilful and give rise to an action for permanent support and maintenance. Section 137, Civil Code, does not distinguish between a failure to provide the support stipulated in a separation agreement in accordance with § 175, Civil Code, and a failure to provide the support impliedly contracted for by the act of marriage in accordance with § 155, Civil Code. In both cases a husband liable for the support of his wife fails to provide for her and she is entitled to institute the action for permanent support and maintenance and may be granted the relief pendente lite provided for. That an unfulfilled agreement to provide for a wife living apart from her husband by consent does not in this state absolve the husband from his statutory obligations of support is also indicated by Bay Dist. Claim Service v. Jones, 136 Cal.App.Supp. 789, 24 P.2d 977, in which case it was held that under these circumstances the husband in accordance with section 174 of the Civil Code was liable to third persons for necessaries furnished by them to the wife.
Neither can anything to the contrary be derived from the case of Patton v. Patton, 32 Cal.2d 520, 196 P.2d 909, supra. In that case it was held that a trial court abused its discretion in refusing to consider as evidence bearing upon the wife's right to support pending a divorce action separation agreements in which the wife for a valid consideration waived her rights to support and attorney's fees, the validity of the agreements having been upheld in prior proceedings and presently not being attacked by the wife, and in granting relief inconsistent with the provisions of these agreements. The court expressly stated that the cases of Locke Paddon v. Locke Paddon, 194 Cal. 73, 227 P. 715 and Steinmetz v. Steinmetz, 67 Cal.App. 195, 227 P. 713, had not been overruled; these cases upheld awards of temporary alimony and counsel fees pending trial of the issue in regard to the right to divorce and the validity of property settlement agreements in which the wife had waived all rights to alimony, counsel fees, and costs but which agreements were attacked by the wife as fraudulent and void. 32 Cal.2d 520, at page 524, 196 P.2d 909. The agreements in the case before us do not contain any waiver of temporary alimony, counsel fees or costs and no such waiver can be read into them as they must be strictly construed so as not to deprive a spouse of rights unless there is a clear and unmistakable intention to barter them away. Compare Barham v. Barham, 33 Cal.2d 416, 427, 202 P.2d 289. The granting of such relief would therefore in this case not be inconsistent with the provisions of the agreements. Moreover the amending agreement (Exhibit B) is being attacked as fraudulent by the wife as in the Steinmetz and Locke Paddon cases, and she does not oppose but invites the consideration by the court of the provisions of the original agreement (Exhibit A) in deciding her right to temporary and permanent relief. With respect to the granting of temporary relief we see no difference between divorce actions as involved in the Patton, Locke Paddon and Steinmetz cases and an action for permanent support and maintenance as instituted in this case. Both are governed by the same provision of § 137, Civil Code.
Our conclusion that under the circumstances of this case the trial court had power to grant relief pendente lite is in accord with the policies maintained in this state in the field of matrimonial relations. Public policy requires the protection of the wife, Adams v. Adams, 29 Cal.2d 621, 627, 177 P.2d 265; the state has an interest in her support lest she become a public charge. Miller v. Superior Court, 9 Cal.2d 733, 739, 72 P.2d 868. The policy of the law is opposed to divorce. Hiner v. Hiner, 153 Cal. 254, 256, 94 P. 1044. The purpose of the amendment of section 137, Civil Code permitting the wife to maintain an action for permanent support and maintenance without applying for divorce was to enlarge her right of action, to leave open the hope of reconciliation and to prevent a husband from starving an innocent wife into the necessity of suing for a divorce. It is remedial in character and therefore to be liberally construed. See Hiner v. Hiner, supra, 153 Cal. 254, at page 257, 94 P. 1044; Benton v. Benton, 122 Cal. 395, 398, 55 P. 152; Sweasey v. Sweasey, 126 Cal. 123, 129, 58 P. 456. Property settlement agreements occupy a favored position in the law of this state and are preferred by the courts to litigation. Adams v. Adams, supra, 29 Cal.2d 621, 624, 177 P.2d 265; Hensley v. Hensley, 179 Cal. 284, 287, 183 P. 445, 446. 'The power to allow alimony and counsel fees to the wife, in order to enable her to live pending the action, and to prevent her defense, [or her right of action] if she has one, must be regarded as incidental and necessary in all matrimonial actions. Without such power, the rights of the woman, in many cases, could not be adequately protected.' Dunphy v. Dunphy, 161 Cal. 87, 91, 118 P. 445, 446, quoting from Higgins v. Sharp, 164 N.Y. 4, 8, 58 N.E. 9. 'The merits of the case, where there is no issue as to the marriage, will not be considered on an application for such alimony further than is necessary to determine that the wife is proceeding in good faith * * *.' Kowalsky v. Kowalsky, 145 Cal. 394, 395, 78 P. 877. 'If the court were compelled to try and determine the issues in the case before it could allow alimony, the entire purpose of allowing alimony 'during the pendency of such action' would be defeated.' Storke v. Storke, 99 Cal. 621, 622, 34 P. 339, 340.
To hold with respondent that a wife who has entered into a separation agreement with stipulation of support and who alleges that the husband fails to perform it can in no action short of divorce receive temporary relief to enable her to litigate her husband's duty to provide for her, unless the agreement has first been set aside by court decision, would run counter to all principles stated above. It is sufficient for the purpose of this case to decide that the court under the circumstances has power to grant the wife alimony pendente lite, costs and counsel fees when the action instituted is for permanent maintenance and support based on her conjugal rights. On the question whether the same relief is also allowable in this state when the action is purely on the contract to enforce the amount of support stipulated we express no opinion.
The order is reversed.
DOOLING, J., concurs. --------------- * Subsequent opinion 223 P.2d 214.