Hardy v. Hardy

TRAYNOR, J.

On April 24, 1937, plaintiff Myrtle Hardy and defendant Oliver Hardy executed a property settlement agreement providing that defendant would pay $250 weekly for the support of plaintiff unless his income fell below $1,000 a week, in which case he would pay one-quarter of the amount he received. Plaintiff contends that defendant was bound to pay $250 weekly, regardless of his actual receipts in a particular week, if his income averaged over $1,000 a week. Defendant contends that in any week in which his receipts were less than $1,000, he was bound to pay only one-quarter of the amount actually received, without regard to any average. Defendant is a motion picture actor, and his contract with his employer gave him a salary in excess of $1,000 a week for forty weeks in the year. For the other twelve weeks, described as “suspension weeks,” defendant received $100 a week. The employer was free to designate as suspension weeks any twelve weeks in the year. Although defendant’s annual income averaged more than $1,000 a week, he paid plaintiff for the suspension weeks only one-quarter of the amount he actually received at such times. On April 16, 1941, plaintiff commenced this action for breach of contract, praying alternatively for reformation. Defendant filed an answer denying the allegations of the complaint and moved for summary judgment in his favor. It was stipulated that if defendant correctly interpreted the contract, no issue of fact existed requiring trial. On November 4, 1941, the motion was granted and judgment was entered on March 26, 1942.

A motion for summary judgment may not be granted except on affidavits in favor of the moving party containing facts sufficient to entitle him to judgment in his favor. (Code Civ. Proc., sec. 437c.) Defendant sets forth the pertinent portion of the contract in his affidavit. It provides that “ . .. for the support of first party (plaintiff), second party (de

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fendant) shall pay to first party from this day forward . . . the sum of two hundred fifty dollars ($250.00) per week BUT ÍN THE EVENT the weekly amount received by second party from any source whatever, either as income, salary, royalty, commission, bonuses, and/or earnings falls below one thousand dollar’s ($1000.00) per week, the amount which second party is required to pay to first party during the week or weeks when such income, etc. falls below $1000.00, is to be reduced to one-fourth of the amount so actually received by second party from the said source.”