CARTER, J. I dissent.
The majority opinion is inconsistent in itself as well as [827]with prior decisions of this court. In the case at bar it is held, by the majority, that the agreement under consideration was an integrated property settlement agreement which could not be modified unless the parties had agreed to a modification. Then it is held that despite the fact that the agreement provided only one condition upon which the provisions could be modified, that defendant was entitled to a modification because his income had been reduced—a condition not mentioned in the agreement.
Paragraph 10 makes provision for the modification of the agreement as follows: “For purposes of this agreement no earnings of Wife or other income obtained by her shall be considered as a ‘changed condition’ and taken into consideration in connection with any attempt of Husband to obtain a reduction in payment for support of Wife or said child, John Daniel Plumer, except such portion of said earnings or other income as shall exceed the gross average monthly sum of Two Hundred Fifty Dollars ($250.00). ‘Average Monthly’ earnings or income shall be computed on the basis of the total earnings or income of Wife (other than Husband’s payments to her) for the twelve months prior to the filing of Husband’s petition for reduction divided by twelve.” The agreement is completely silent as to any other provision or stipulation for modification of the support payments to be made by the husband. A majority of this court adds its own provision for modification to an admittedly integrated agreement and concludes “that upon a proper showing of a material reduction in defendant’s income, the trial court may in its judicial discretion modify its order requiring payments for the support of plaintiff and the child.” That the support and maintenance provisions of the agreement were intended as a division of property is clearly shown by the provision in the agreement that the payments to the wife shall continue until her remarriage but that notwithstanding her remarriage the payments are to be continued until five years from September 25, 1954. In other words the parties intended that the wife was to receive a certain sum of money whether or not she remarried. A more complete expression of the parties’ intention as to the division of their property is difficult to imagine. The majority, sensing a need to gloss over its interference with the parties’ agreement, tells us that the provision whereby plaintiff was to receive payments for five years from September 25, 1954, was a provision dealing “only with the termination of support payments, not with their modification. [828]It provides only that ‘payments’ shall continue, and a reduction in the amount of the payments pursuant to paragraph ten will not violate its terms.” The parties contemplated only one reason for modifying the payments and that was if the plaintiff’s separate income exceeded $250 exclusive of the payments made to her by defendant. A majority of this court has expanded the parties’ agreement to include another reason—a reduction in the defendant husband’s income.
I am firmly of the opinion that, in the absence of consent by the parties, a court has no power to modify an agreement, whether as to a division of their property or for the purpose of support, entered into by the parties when there has been no fraud, overreaching or undue influence. Anything said by me to the contrary in the case of Hough v. Hough, 26 Cal.2d 605 [160 P.2d 15], is hereby expressly disapproved by me. In subsequent cases I have made my views clearly known (see concurring and dissenting opinions in Dexter v. Dexter, 42 Cal.2d 36, 44 [265 P.2d 873] ; Fox v. Fox, 42 Cal.2d 49, 53 [265 P.2d 881] ; Flynn v. Flynn, 42 Cal.2d 55, 62 [265 P.2d 865]; Anderson v. Mart, 47 Cal.2d 274, 284 [303 P.2d 539] ; Herda v. Herda, ante, pp. 228, 235 [308 P.2d 705] ; and concurring opinion in Messenger v. Messenger, 46 Cal.2d 619, 630 [297 P.2d 988]). I feel that since the code (Civ. Code, §§ 158,159,175) gives to the parties the right to contract with each other, their contract (in the absence of fraud or overreaching) should be accorded the same dignity accorded other contracts.
In Dexter v. Dexter, supra, 42 Cal.2d 36, 42, a majority of this court there held: ‘‘. . . the court cannot, after the interlocutory decree has become final, add a provision for alimony or modify the amount of payments ordered pursuant to a property settlement agreement. Accordingly, if plaintiff was satisfied with her contract whereby she had made the support and maintenance provisions an integral part of the settlement of property rights and had tenable grounds for setting it aside, she should have attacked the agreement before the interlocutory decree was entered. She cannot, however, after having secured its approval by the court and having accepted the benefits thereof, now seek relief inconsistent with its terms.” (Emphasis added.) In the case at bar the majority admits that the agreement involved was an integrated property settlement agreement. It is even admitted that a property settlement agreement containing support provisions cannot be modified in the absence of a provision in the agree[829]ment providing for modification. Having paid lip service to prior decisions, the majority then writes in its own provision for modification. It is at once apparent that the majority holding in the case at bar is directly contrary to what was held and said in the Dexter case in the passage heretofore quoted. In the case at bar, defendant husband accepted the benefits of his bargain and now seeks to be relieved of the burdens.
In Fox v. Fox, supra, 42 Cal.2d 49, 52, 53, a majority of this court said: “. . . it is clear that the provisions for the support and maintenance of plaintiff are an integral and inseverable part of the property settlement agreement of the parties.” And “Similarly, the fact that the payments might be reduced under certain specified circumstances does not indicate that they were alimony. Not only may the parties include such provisions in agreements that are admittedly solely property settlements (Hogarty v. Hogarty, 188 Cal. 625, 628 [206 P. 79]), but the provision in this case lends support to the conclusion that at least part of the payments constituted a division of property as such. Thus in no event were the payments to fall "below $200 per month, and they were to cease on a fixed date without reference to plaintiff’s needs or defendant’s ability to pay after that time.” (Emphasis added.) It should be recalled that in the case at bar plaintiff was to receive a definite sum regardless of her needs and regardless of defendant’s ability to pay; and that the payments were to continue until a certain date regardless of plaintiff’s remarriage. Only one specified condition was made for modification and that condition has not been met.
In Flynn v. Flynn, supra, 42 Cal.2d 55, 60, a majority of this court held: “An examination of the property settlement incorporated by reference in the interlocutory decree makes clear that it is an integrated bargain of the type considered in Dexter v. Dexter, ante, p. 36 [265 P.2d 873], and Fox v. Fox, ante, p. 49 [265 P.2d 881]. Accordingly, the provisions for monthly payments may not be modified contrary to its terms. . . . Since the parties have provided that the court may modify the payments ordered pursuant to the terms of their agreement, the court has jurisdiction to do so in accordance with the agreement.” (Emphasis added.) It was concluded that the defendant might “renew his motion for a reduction in the monthly payments in accordance with the terms of the property settlement agreement any time the facts so justify.”
[830]It appears to me that it should be obvious to lawyers and laymen alike that the holding in the case at bar is wholly inconsistent with the holding in the Flynn case.
In Messenger v. Messenger, supra, 46 Cal.2d 619, 626, a majority of this court held that “. . . the parties have made the provision for support an integral part of their property settlement agreement.” That “Plaintiff was entitled to agree . . . to an equal division of the community property in exchange for support and maintenance payments that could not be reduced.” And that “With such conclusive evidence of integration, the provisions for support and maintenance or alimony would be subject to modification only if the parties expressly so provided. (See Flynn v. Flynn, supra, 42 Cal.2d 55, 61, and cases cited.) The court may not, however, ‘insert what has been omitted’ (Code Civ. Proc., § 1858) and thereby abrogate the clearly expressed agreement of the parties.” (Emphasis added.) In the case at bar this court. has “inserted what has been omitted” and has, thereby, abrogated the “clearly expressed agreement of the parties”! So, again, the majority opinion is clearly inconsistent with its opinion in the Messenger case.
In Anderson v. Mart, supra, 47 Cal.2d 274, 279, a majority of this' court, quoting from the Messenger ease, held that the conclusion was inescapable that the parties had made the provision for the wife’s support an integral part of the property settlement agreement. It was held that since the property settlement agreement made no provision for termination of the support payments to the wife and since the parties had not, in accordance with their agreement entered into a written modification of its terms, that the wife was entitled to recover from the husband’s estate the present value of the amount attributable to her support for the remainder of her life expectancy. The majority held, again quoting from the Messenger case, that “. . . the provisions for support and maintenance or alimony would be subject to modification only if the parties expressly so provided.” The court refused to consider defendant’s theory that the support provisions were intended by the parties to end with the death of the payor and held that since there had been no written modification as provided for in the agreement the payments did not terminate. In the case at bar, no provision was made for modification of the wife’s support payments in the event of a decrease in the husband’s income but the majority of this court has generously supplied that omission and has [831]abrogated the parties’ clearly expressed agreement. (See Messenger v. Messenger, 46 Cal.2d 619, 626 [297 P.2d 988].)
As I pointed out in my dissenting opinion in Herda v. Herda, supra, ante, pp. 228, 235, the majority reached an entirely different result on similar facts than was reached in the Anderson case. Here again it was held by the majority that the support payments were an integral and inseparable part of the property settlement agreement entered into between the parties. But even though no termination date was expressed in the agreement and even though no mention was made concerning the termination of the payments on the wife’s remarriage or the death of the husband, a majority of this court held that “Since the agreement in the present case dealt primarily with support rights and the payments were described as for support and maintenance, it would be unreasonable to conclude that the agreement contemplated that the payments should continue for plaintiff’s [wife’s] benefit after the obligation to support the children had terminated. ...” (Emphasis added.) In both the Herda and Anderson cases where different results were reached the majority relies upon the Messenger ease. Because there was no provision for the support payments to cease upon the husband’s death, the majority in the Anderson case held that plaintiff was entitled to recover from the husband’s estate for the balance of her life expectancy; in the Herda case, even though there was no provision for the wife’s support payments to cease on her remarriage, the majority held that “it would be unreasonable to conclude” that the parties had not intended such payments to cease when the wife remarried.
As long as a majority of this court continues to rewrite the parties’ agreements for them, add provisions which are not present, constitute itself the trier of fact and, in general, refuses to permit property settlement agreements to be enforced according to the rules applicable to other contracts, this state of ultimate confusion will exist in this field of the law in California. It is unfortunate that this court is the court of last resort in this field and that there is no higher authority to lay down a workable rule of law so that attorneys can, with some measure of certainty, advise their clients.
I would affirm the order dismissing defendant’s application for modification of the decree.