Hixson v. Hixson

SHENK, J. The plaintiff wife has appealed on the judgment roll from a minute order in a divorce action requiring her to make monthly payments to the defendant, her divorced husband, for the support of two of their children.

The defendant secured an order to show cause why the interlocutory and final decrees of divorce previously secured by the plaintiff should not be modified by reducing the amount of payments required to be made to the wife. He relied on the fact that the two children were voluntarily living with and being supported, by him. After a hearing the trial court found that under the interlocutory decree, which approved a property settlement agreement, the plaintiff was required to support the children of the marriage; that the decrees contemplated that the children would reside with the plaintiff ; and that $200 per month was necessary for the support of the two children residing with the defendant. The court made the order appealed from directing the plaintiff to pay $200 per month to the defendant so long as the children continued to live with him, and providing that this amount might be offset against the $600 monthly payments due to the plaintiff from the defendant under the decree “for her support and maintenance and for the support and maintenance of the children. ’ ’

The plaintiff contends that the action of the trial court is invalid as an attempt to modify an unqualified disposition of property rights. (See Leupe v. Leupe, 21 Cal.2d 145 [130 P.2d 697] ; Puckett v. Puckett, 21 Cal.2d 833 [136 P.2d 1].) She relies on the interlocutory decree and the property settlement agreement which was made a part of that decree and approved by it. Inasmuch as the final decree does no more than reaffirm the interlocutory decree, only the latter decree and the agreement it incorporates need be considered.

The plaintiff’s argument is relevant only if the order “modified” the earlier decree. It does not purport to do so in "terms and it does not do so in legal effect. Although it may result in smaller payments to the plaintiff from the defendant than provided for in the interlocutory decree, such a reduction is a result of what is also provided for in the same decree, namely that the agreement between the parties be performed by both the plaintiff and the defendant. In the [446]agreement the plaintiff promised “to support and maintain the children of the parties during their minority.” The order merely directs her to furnish the sum reasonably necessary for the support of two of the children and offsets this obligation against that of the defendant.