CARTER, J., Concurring and Dissenting. I concur in the affirmance of the order, but dissent as to some of the reasoning set forth in the majority opinion.
In the case at bar, the interlocutory decree provided that “The property settlement agreement between the parties hereto dated October 11,1941, and received in evidence herein, is hereby ratified, approved and confirmed and the same is hereby specifically incorporated herein and made a part of this decree, and defendant is hereby ordered to make all of the payments provided therein to be paid by him, at the times and in the manner therein provided, and plaintiff and defendant are hereby ordered to comply in all respects with each and all of the terms and provisions of said agreement and to perform all their obligations thereunder as therein provided.” This provision of the interlocutory decree was [63]incorporated in the final judgment by reference. In the majority opinion it is held that the agreement entered into between the parties was an integrated property settlement agreement which could not be modified by the court in the absence of another agreement between the parties. With this holding I agree. I do not agree that the paragraph above quoted is sufficient to merge the agreement into the interlocutory decree of divorce.
I am also of the opinion that if the decree does not embody the agreement either in substance or in haec verba, it is not an operative part of it and may not be enforced as a part of the decree. This is true even though the agreement may have been introduced in evidence and approved by the court. If the agreement is merely introduced in evidence as an exhibit, as it undoubtedly was here, it could be withdrawn or destroyed and interested parties could not, by searching the records of the court “construct a complete picture of the rights and obligations of the parties” (Price v. Price, 85 Cal.App.2d 732, 735 [194 P.2d 101]).
In Howartlh v. Howarth, 81 Cal.App.2d 266 [183 P.2d 670], the question was whether an action for support money would lie on an agreement for support where the court granting the divorce decree (Utah) approved the agreement but did not embody it in the decree. It was held that an action would lie on the agreement but not the decree. (See, also, Taylor v. Taylor, 39 Cal.App.2d 518 [103 P.2d 575]; Robertson v. Robertson, 34 Cal.App.2d 113 [93 P.2d 175]; Ross v. Ross, 1 Cal.2d 368 [35 P.2d 316].) It should be obvious that where the agreement has not been properly embodied in the decree but the court purports to order performance of it and makes no other provision for support or division of property, it either has not passed upon the questions of support, or has, in effect, denied alimony. Indeed, where a decree has made no provision for alimony, the court cannot later modify it to provide for alimony. This is true unless the court in some authorized manner has reserved jurisdiction to do so. (Estate of Brooks, 28 Cal.2d 748 [171 P.2d 724]; Monroe v. Superior Court, 28 Cal.2d 427 [170 P.2d 473] ; Long v. Long, 17 Cal.2d 409 [110 P.2d 383] ; O’Brien v. O’Brien, 130 Cal. 409 [62 P. 598] ; Howell v. Howell, 104 Cal. 45 [37 P. 770, 43 Am.St.Rep. 70].) The mere confirmation or approval of the agreement without embodying it in the decree, at most, determines that the agreement is valid and may be enforced in a separate action between the parties. (Price v. Price, 85 Cal.App.2d [64732] [194 P.2d 101].) If the agreement is an integrated property settlement agreement, or if it is a valid agreement entered into between the spouses for the support and maintenance of one of them, it may not, even if embodied in the decree, be modified without the consent of both parties. (See Fox v. Fox, ante, p. 49 [265 P.2d 881]; Dexter v. Dexter, ante, p. 36 [265 P.2d 873].)
A separation agreement, whether it involves property rights or support allowances, or both, has not been embodied in the decree for the purpose of merger, or enforcement by contempt proceedings unless it is set forth in full, or in substance, in the decree itself or is physically attached to the decree and expressly made a part thereof by the language of the decree and compliance with its terms is ordered by the decree. As was said in Price v. Price, supra: . . there is a difference for if there is an actual incorporation of the agreement into the decree, the decree standing alone then carries within itself the complete measure of the rights and obligations of the parties. In the court’s files, the decree or judgment itself supplies all the information necessary to whomsoever may be interested. If recorded it announces to the world the respective interests of the parties in any property involved.
“If on the other hand the agreement is made a part of the decree by reference only the above is not true. One searching the file could not construct a complete picture of the rights and obligations of the parties from the decree or judgment alone. Reference might be to an exhibit attached to a pleading, to another judgment, or even to an agreement offered in evidence and withdrawn and not available as a part of any public record. In such a case it would not follow that the value attaching to such an unincorporated document would be ‘ only historical. ’ It or a true copy thereof would of necessity have to be sought out and produced in order to determine what the complete judgment actually provided. If it could not be produced, or its terms definitely established, then that part of the judgment represented by it could not be enforced. In particular it could not be enforced by contempt proceedings.” (Emphasis added.) In the majority opinion, it is said that the Price case, being contrary to the following authorities (Goatman v. Fuller, 191 Cal. 245, 251 [216 P. 35] ; De Sepulveda v. Baugh, 74 Cal. 468, 474 [16 P. 223, 5 Am. St.Rep. 455]; Kittle v. Lang, 107 Cal.App.2d 604, 612 [237 P.2d 673]; McLean v. Ladewig, 2 Cal.App.2d 21, 25-26 [37 P.2d 502] ; Newport v. Hatton, 195 Cal. 132, 156 [231 P. [65987]]; Rosenthal v. Matthews, 100 Cal. 81, 83 [34 P. 624]), is disapproved.
In Goatman v. Fuller, supra, an erroneous description of certain real property involved in a lease was carried over into the finding's and judgment in an action on the lease. The trial court granted plaintiff’s motion to amend the complaint, findings and judgment nunc pro tunc to give the correct description. The court there said: “Moreover, it is not questioned that the description of the land originally contained in the judgment is erroneous. Therefore, the only effect of a reversal of the order would be to remit respondents to an action in equity, in which they clearly would be entitled to have the judgment amended. (Young v. Funk, 119 Cal. 107 [50 Pac. 1060] ; In re McGrew, supra [183 Cal. 177 (190 P. 804)].) To obviate any such further proceedings, let the order be affirmed. ’ ’
In De Sepulveda v. Baugh, supra, a quiet title action was involved. A certain tract was described by metes and bounds with an exception which was described as being recorded in certain numbered books, on certain numbered pages, in the records of Los Angeles County. The court there held that while the description was not an “ideal” one, it was not uncertain or doubtful and that the judgment was not “void.” The reference here was to public records.
In Newport v. Hatton, supra, an action to establish the right of plaintiffs in certain land and to the proceeds of the sale thereof was involved. The question was which 75 acres of the south half of a certain quarter section was involved. There the court refused to declare the judgment a nullity because of the defective description and said that whether or not the description was defective must be tested by rules of evidence applied ordinarily to the subject.
In Rosenthal v. Matthews, supra, another description of land was involved. The complaint definitely and correctly described the premises; the judgment described it correctly but excepted from its effect certain parts of the land “as were sown to grain by the defendant during the fall of 1890 and the winter of 1891.” The court held that the land could be identified by extraneous evidence “as in cases of the removal or destruction of stakes or other monuments called for in deeds and patents.”
In McLean v. Ladewig, supra, a quiet title action was involved. It was held there that when property is well de[66]scribed by name, a conveyance by that designation is sufficient and a subsequent particular description could not be held to be used in the sense of restriction.
In Kittle v. Lang, supra, it was said: “It is true that findings, as well as the judgment based thereon, should be definite and certain. At least they should be sufficiently clear and definite to enable a party to comply with their requirements. . . . The judgment here involved is merely an order to the defendant to turn over to plaintiff such part of the personal property assets of the partnership now in defendant’s possession as are described in Exhibit I, which exhibit is made a part of the findings and judgment by reference. Defendant admitted he still had in his possession much of this equipment but claimed title to it under the terms of the quitclaim deed, which deed the court found was ineffective as to this particular personal property.
“As between the parties to this action, we believe the findings and judgment, in this respect, are sufficiently clear and definite to enable defendant to comply with.its requirements.”
It is quite apparent that the Kittle case is the only one of these at all like the case at bar or the Price case which has been erroneously disapproved. In all the others, defective descriptions of real property were involved and, in all of them, it was possible to make certain the deficiency. In a divorce action where the property settlement agreement of the parties is not sufficiently incorporated into the interlocutory and final decrees, an action may still be brought on the agreement itself but, in my opinion, may not be brought to enforce the judgment because there is nothing in the judgment to enforce. It is also apparent that a majority of this court really believes that the agreement was insufficiently incorporated in the decree, for they say: ‘ ‘ These considerations may justify modifying the interlocutory decree on appeal to require that the agreement be attached to the decree. We do not believe, however, that they are sufficient to require us to hold that the decree, now final, is insufficient to effect its clearly stated intent. ’ ’
This case adds a great deal to the confusion which has heretofore existed as to what constitutes an incorporation. To say that the facts here present a sufficient incorporation and then to say that the interlocutory decree, which is now final, may be modified on appeal to require attachment of the agreement thereto is the height of absurdity. It also is an effective trap designed to catch both wary and unwary attor[67]neys who are trying to honestly and conscientiously protect their clients’ interests. Under the holding here, it is absolutely impossible for attorneys to know whether this court will, years later, determine that there was an incorporation, or order one whether or not it was intended at the time of the interlocutory decree.
In my opinion there was no incorporation here.
The proper rule and the rule which should prevail is that a valid agreement between husband and wife fixing the right of support or alimony following divorce, even though it is not integrated with a property settlement, cannot be altered by the court in the ensuing divorce action, or, if incorporated in the decree, the latter may not be modified, unless the agreement so provides. Such an agreement may, of course, be disregarded if it is tainted with fraud or there is overreaching. However, after merger in the decree, the decree is not subject to modification except to the extent that ordinary judgments are subject to attack. This is the logical result which flows from Adams v. Adams, 29 Cal.2d 621 [177 P.2d 265]. We there held that separation agreements in which the support and maintenance provisions are so interwoven that they constitute a part of a division of the property of the parties, and thus not in the nature of alimony, are not sixbjeet to modification either before or after merger except as mentioned in the above stated rule. It was said in the Adams case (p. 624) that: “Property settlement agreements occupy a favored position in the law of this state and are sanctioned by the Civil Code. (Hill v. Hill, 23 Cal.2d 82, 89 [142 P.2d 417]; Hensley v. Hensley, 179 Cal. 284, 287 [183 P. 445] ; Civ. Code, §§ 158, 159.) Such agreements are usually made with the advice of counsel after careful negotiations, and the courts, in accord with legislative sanction, prefer agreement rather than litigation. (Hill v. Hill, supra at p. 89.) When the parties have finally agreed upon the division of their property, the courts are loath to disturb their agreement except for equitable considerations. A property settlement agreement, therefore, that is not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court. (Hough v. Hough, 26 Cal.2d 605, 614 [160 P.2d 15] ; Estate of Belknap, 66 Cal.App.2d 644, 651-652 [152 P.2d 657]; Baxter v. Baxter, 3 Cal.App.2d 676, 681 [40 P.2d 536]; Brown v. Brown, 83 Cal.App. 74, 82 [256 P. 595] ; McCahan v. McCahan, 47 Cal. App. 176,183 [190P.460].)
[68]. . The contract may even provide solely for support and maintenance without reference to a division of property. These contracts, if equitable, are enforceable even though not presented to the court in a divorce action. ’ ’ Those principles were stated as to “property settlement agreements,” yet they are equally applicable to agreements for alimony. It is true that agreements settling property rights are specifically authorized by the statute but the same is also true as to agreements for alimony. Section 158 of the Civil Code provides that: “Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried.” Section 159 reads: “A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree, in writing, to an immediate separation, and may make provision for the support of either of them "and of their children during such separation.” (Emphasis added.) And further indicating the propriety of such agreements, section 175 provides: “A husband abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him; nor is he liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement.” Such agreements are enforceable and binding upon the parties, if equitable, even though not presented to the court in the divorce action. {Adams v. Adams, supra, 29 Cal.2d 621, 624; Sanborn v. Sanborn, 3 Cal.App.2d 437 [39 P.2d 830] ; Brown v. Brown, 83 Cal.App. 74 [256 P. 595].)
There are cases that hold or state that the incorporation of a support agreement in the divorce decree does not prevent the modification of the decree. (See Adams v. Adams, supra, 29 Cal.2d 621; Hough v. Hough, supra, 26 Cal.2d 605; Puckett v. Puckett, 21 Cal.2d 833 [136 P.2d 1] ; and cases cited in those cases.) Those cases are based on the theory that the court in an action for divorce has general power over alimony and that such power cannot be taken away by agreement of the parties as to alimony either when considering the question in the divorce action, or in considering the question of modification of the decree, where the agreement has been incorporated in the decree, because it has power to determine fault upon which an award of alimony may depend (Civ. Code, § 139); and that there is a public policy against the possibility that the care of the spouse will become a public charge [69]where the agreement does not make adequate provision. In regard to permanent alimony, section 139 of the Civil Code provides that when the divorce is granted for an offense of the husband, the court “may” provide for the wife’s support by him and “may” modify its orders on that subject. The court “may” require the payment of temporary alimony— support during the pendency of the action. (Civ. Code, § 137.) It will be noted that the authority of the court is stated in permissive rather than mandatory language. The wording does not exclude the propriety of the parties contracting on the subject or the court being bound by the contract. Those sections must be read in conjunction with section 159, supra, which expressly authorizes those contracts. It is not to be supposed that the Legislature would expressly authorize those contracts and at the same time leave it to the whim or caprice of the divorce court whether any effect was to be given to them. The right of freedom of contract given by section 159, supra, certainly eliminates any argument that a married woman is not competent to contract or that she needs any protection by the court that is not afforded to other contracting parties. Moreover, it must be noted that the court in the divorce action is given the authority to divide the community property of the spouses according to various fault factors (Civ. Code, § 146, which provides that community property “shall” be assigned as there set forth), yet it is held by a legion of cases that a contract dividing such property when presented to the court in the divorce action is binding on the court. (Adams v. Adams, supra, 29 Cal.2d 621, and cases cited supra.) The same construction should be given to sections 137 and 139 of the Civil Code. It is true that nothing is said in section 146, as there is in section 139, about modifying the property division orders of the court, which is understandable because that is done by one act and does not involve the doing of a series of acts in the future like monthly payments for support, and I am referring to the holdings that the property division contract is binding on the court when presented in the divorce action. The fact that the code sections authorize giving consideration to fault of the parties in the award of alimony requires no different result because the same is true of a community property division, and as the parties are free to contract as to support (Civ. Code, § 159, supra), they may in their negotiations give consideration to that factor. I would hold, therefore, that there is nothing in the Civil Code sections discussed which
The policy factors are not persuasive. The statute (Civ. Code, § 159) expressly declares the policy that the parties may contract on this subject. If they may, effect should be given to their contracts. Being fully advised, they have made their choice on the question of support. Having made the arrangement, they are entitled to have it be given stability in order that each may arrange his future affairs with some degree of certainty. If future contingencies might alter the situation they may provide for them in their contracts. Indeed, terms in the contract giving flexibility to it would be desirable and easily achieved. Courts do not make new contracts or disregard contracts which the parties have made on a subject concerning which they may lawfully contract. (6 Cal. Jur. 326 et seq.)
Of course, the parties need not contract unless they desire to do so. They may leave the determination to the court. If they do contract but do not present it to the court in the action and the court makes a determination on the subject of support, then they have waived the contract as fixing their rights and obligations; the decree then is the measure of their rights and duties. If the contract is presented to the court and is approved but not embodied in the decree as heretofore described, then their remedy is on the contract and not the decree. Such is the case at bar.