PEEK. I dissent: I cannot agree with the conclusion of the majority opinion that the provisions for support of the wife in the property settlement agreement before us are, as a matter of law, an integral part of the parties’ disposition in that agreement of their community property. I would affirm .the ruling of the trial court which was based upon conflicting extrinsic evidence (set forth in part, infra) of the parties’ intent that the agreement was not integrated. (Messenger v. Messenger, 46 Cal.2d 619, 626-627 [297 P.2d 988]; Fox v. Fox, 42 Cal.2d 49, 52 [265 P.2d 881].)
In Plumer v. Plumer, the case strongly relied upon in the majority opinion, this court affirmed that portion of the order of the trial court which held the agreement there under consideration to be integrated. (48 Cal.2d at pp. 823, 826.) However the court noted that the agreement there in question contained a modification provision that “Both parties poncede [d] ... provides for modification of the court’s support orders,” but that the parties could not agree upon the construction to be placed upon the paragraph. (48 Cal.2d at p. 826.) The court held that the “plain language” of thejpro[395]vision indicated the parties contemplated modification upon a proper showing, and held: “We conclude, therefore, 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.” (P. 826.) In other words under the terms of the agreement modification was a fact question for the trial court to decide.
Furthermore in this regard it should be noted that the portion of the opinion in Plumer relied upon by the majority appears in a general discussion by the court wherein the problems inherent in this type of case are set forth at length. It seems to me that to properly evaluate the court’s discussion consideration must be given to the strong indication that such an agreement must contain as a general rule three provisions before the agreement alone and ty itself “will be deemed conclusive evidence that the parties intended an integrated agreement.” (Italics added.) Those provisions were said to be: (1) a recital that it is the purpose of the parties to secure a final settlement of respective rights and duties concerning both property and support rights; (2) that the provisions for payments to the spouse are in consideration for the agreed-upon division of the community property; and (3) that the parties waive all rights arising from their marital relationship except as spelled out in the agreement. (48 Cal.2d at p. 825 [6].)
While the agreement before us contains recitals which fulfill the requirements of the first and third elements as stated, it is wholly devoid of any mention that the provisions for support of the wife are in consideration for the division of the community assets. This is the element emphasized by the eases and the commentators to be the core of the legal concept of a contract between spouses where periodic payments in the nature of support cannot be later modified by the court because those payments are accepted in exchange for a negotiated division of the community assets.1 Indeed it [396]was stated by this court in the Plumer case that “An agreement is integrated if the parties have agreed that the provisions relating to division of property and the provisions relating to support constitute reciprocal consideration. The support provisions are then necessarily part and parcel of a division of property.” (48 Cal.2d at p. 824.) There are similar indications of the importance of an “in consideration” clause in Adams v. Adams, 29 Cal.2d 621, 625 [4] [177 P.2d 265], and Messenger v. Messenger, supra, 46 Cal.2d 619, 626, 627-628. (See 31 So.Cal.L.Rev. 287, 300-301 (1958); 34 State Bar J. 590, 591 (1959).) Furthermore it was held in Pearman v. Pearman, 104 Cal.App.2d 250, 254 [231 P.2d 101], that “The fact that the agreement recites it is in full settlement [as herein] and releases the husband of all further claims [a waiver clause as in the agreement before us] does not preclude the court from inquiring into and determining whether the monthly payments are ‘property’ or ‘alimony.’ ”
Of course such agreements must be construed as a whole (Clark v. Clark, 198 Cal.App.2d 521, 529 [17 Cal.Rptr. 652]), and as noted in the majority opinion integration of the support provisions has been found in those eases cited even in the absence of a recital that the payments were in consideration for a property division, where there was other evidence of the parties ’ intent.
Thus in Dexter v. Dexter, 42 Cal.2d 36, 43 [265 P.2d 873], there was an equal division of the property (see Kelley v. Kelley, 151 Cal.App.2d 228, 234 [311 P.2d 90], supporting the trial court’s denial of the wife’s request for modification of the payments, and in Plumer v. Plumer, supra, 48 Cal.2d 820, 826, the payments were to continue for five years regardless of the wife’s remarriage, the classic situation of periodic payments in lieu of a larger initial share of eom[397]munity property. Also in the Plumer ease the parties had inserted a clause allowing future modification upon changed circumstances, further evidence of intent that the agreement itself be integrated. In Clark v. Clark, supra, 198 Cal.App.2d 521, 528-529, 532, the payments also were to continue at a certain amount for a specified time, and the agreement recited that the parties were in doubt concerning the nature and extent of their community property (see Dexter v. Dexter, supra, 42 Cal.2d 36, 43). Grolla v. Grolla, 151 Cal.App.2d 253, 257 [311 P.2d 547], likewise relied upon in the majority opinion, was a situation where the community property was divided so that the husband received a substantial amount thereof, thus indicating consideration in fact for his promise to make payments to the wife and supporting the trial court’s refusal to increase the payments at her request.
The majority opinion particularly emphasizes and relies upon that portion of the agreement before us reciting that “The parties do hereby release each other and relinquish to each other all right of support, alimony or community property rights, including the right to inherit, which she or he may have had or now have against each other by virtue of their marriage except as herein provided, and do accept this agreement, if fully performed by both parties, in full settlement of any and all rights arising out of their marriage, except as herein provided, . . .” Admittedly in other circumstances as in the Plumer, Dexter, Clark, and Grolla cases heretofore discussed, the respective agreements were held to be integrated partly because of the presence of such waiver and “final settlement” clauses. But the provisions presently under discussion purport to waive or release only rights which the parties “may have had or now have”, and to effect a “full settlement of any and all rights arising out of their marriage.” The waiver clause is cast in the past and then present, rather than the future tense, and the final settlement provision can be interpreted to express their intent to settle only those “rights arising” prior to execution of that agreement.
There is no release of future claims as in the Plumer case (see 48 Cal.2d at p. 822), nor does the agreement emphasize finality as in Campbell v. Campbell, 178 Cal.App.2d 77, 80-81 [2 Cal.Rptr.710], where the parties stated that they were “ ‘ desirous of forever settling their respective rights and duties relative to ... the support and maintenance of the Wife . . ” and they waived claims in the other party’s [398]income “ ‘from this date on . . . .’ ” The instant agreement also differs in its mode of finality of expression from that in Ebert v. Ebert, 185 Cal.App.2d 293, 296, 299 [8 Cal.Rptr. 203] (executed in 1951, eight days before the instrument at bar), where the parties stated a desire to settle property rights from the marital relationship “ ‘once and for all,’ ” and to compensate the wife “ ‘for any and all ... maintenance or support’ ” which she might seek “ ‘in any court proceeding of any kind whatsoever, or otherwise, now pending, or which might be hereafter commenced. ’ ” The parties in Baker v. Baker, 192 Cal.App.2d 730, 734 [13 Cal.Rptr. 772], in contrast to the situation before us, also unmistakably looked to the future and expressly provided “ ‘That neither alimony nor child support shall be subject to increase or decrease by virtue of change of circumstances for either party, and that neither party will apply therefor. ’ ’ ’
The foregoing eases demonstrate that when the parties and their attorneys do contemplate the problem of future increases or reductions in support payments arising from property settlement agreements and form an intent to allow or prohibit modification thereof, such an intent concerning the future, in contrast to the situation before us, easily can be expressed in a “once and for all” type of provision.
The majority opinion in various numbered paragraphs also mentions certain elements which although often included in such agreements are not necessarily controlling. But what that opinion fails to add is that such matters while not controlling when considered alone are nonetheless evidentiary. Thus the provision whereby Frank stated that he would, in effect, pay until his wife’s death or remarriage 30 per cent of his income before taxes ‘‘as and for alimony and support money”, and an additional 20 per cent of his income as support for the two children, a total commitment of 50 per cent of his present and future income before taxes (regardless of his future remarriage or other financial commitments), is evidence of or at least subject to the inference that the agreement contemplated a continuance of the marital obligation of support, rather than its termination. (See Kelley v. Kelley, supra, 151 Cal.App.2d 228, 234-235.) Such a provision, by the very severity and rigidity of the expressed financial obligation assumed by the husband,2 seems to look [399]toward modification by the court in the event of the parties’ (and particularly Frank’s) changed circumstances as with alimony payments. (Civ. Code, § 139.)
The eases cited in the majority opinion for the proposition that such provision for adjustment upward does not require an inference of severability all represent distinguishable legal situations. Bradley v. Superior Court, 48 Cal.2d 509, 513-514 [310 P.2d 634], involved payments geared to income in the context of an agreement stated to “ ‘refer only to property rights,’ ” and there was no discussion of whether that flexible clause required an inference of severability. Nor was any possible inference of severability because of payments tied to income discussed in Burr v. Crellin, 159 Cal.App.2d 275 [323 P.2d 830], or Arthur v. Arthur, 147 Cal.App.2d 252 [305 P.2d 171].
Furthermore, the exceptional financial obligation imposed upon the husband was assumed for what appeared at the time to be virtually no consideration in fact. (See Pearman v. Pearman, supra, 104 Cal.App.2d 250, 254.) Except for a few personal effects, Dorothy appears to have received all of the tangible community property, with the exception of a three year-old automobile in which the parties’ joint equity was estimated, by Frank’s attorney in the present proceeding, to be $200. Admittedly Frank was awarded the business which subsequently, apparently through his efforts, has shown substantial profits. But at the time of the agreement he was earning only $6,000 per year gross from the business. Thus in return for giving up all tangible community property excepting a $100 interest in an automobile, Frank received the “right” to continue to employ his own abilities and personality in a business which had virtually no assets over and above such personality factors. For this “right” he was indefinitely obligated to pay 50 per cent of his income before taxes to his former wife and his children.
While it has been indicated that the amount or manner of division of the community property may in some situations be unimportant in determining the question of severability of support provisions (see Plumer v. Plumer, supra, 48 Cal.2d [400820], 824), the allocation of community property can be a relevant consideration in determining integration. (Kelley v. Kelley, supra, 151 Cal.App.2d 228, 234; see Herda v. Herda, 48 Cal.2d 228, 233 [308 P.2d 705].) Consideration of respective amounts received seems entirely proper, since nonmodifiable periodic payments in lieu of support appear to have originated in the situation where a party, usually the wife, exchanges a lump sum payment for community property in exchange for periodic payments for those assets. (See Adams v. Adams, supra, 29 Cal.2d 621, 625-626.)
Presented with such provisions of this agreement which cast doubt on the wife’s assertion of integration, in my opinion it was entirely proper for the trial court to hear extrinsic evidence of the parties’ intent. The testimony by Dorothy included the following: “Q.: Before you went into the attorney’s office did you discuss the terms of the separation? A.: No, only that I would have the children. Q.: There was no discussion of alimony and support? A.: No, no. Q.: Was there a discussion of how the property should be divided? A.: Well, what we had, I was to have all except a few little things. Q.: And how about the business ? A.: That was discussed by Mr. DiMarco and myself. Q.: Was it discussed in the lawyer’s office? A.: Yes. Insofar as the car that we had that belonged to the business, that I would not claim the car as joint property. Q.: Was it discussed as to who should have the business ? A.: Not in words like that, not that the business was at issue. Q.: Oh, no one said anything about who should have it, in your presence? A.: Not that I heard.” (Italicsadded.)
Later Dorothy was asked: “You discussed alimony payments when you were in the lawyer’s office, alimony payments?” She responded, “And child support.” To a subsequent question: “... What were you thinking of when you mentioned alimony payments in the lawyer’s office?”, she answered, Oh, just something for us to live on. ’ ’
On cross-examination of Dorothy the following occurred: “Q.: You understood that you were getting alimony by reason of this divorce decree, is that correct? A.: Well, let’s put it that way: I thought that. Only it was pretty hard to figure out which was child support and which was alimony. Q.: You say that the business of Mr. DiMarco at the time was not at issue. I take it it had no physical assets to your knowledge? A-: The car, the automobile. Q.: And was there a balance owing on the car at the time? A.: I don’t know. Q.: [401]To your recollection was Mr. DiMarco making payments on the car to some bank? A.: Well, it would be through the business. Q.: And insofar as you knew, the business had no assets that you wanted? A.: I don’t—I didn’t know what the business had. Q.: And so far as you know, you didn’t give up anythingf A.: No, I was primarily concerned with just the furniture and the children. Q.: And you weren’t concerned with the business ? A.: No. I thought that probably Mr. DiMarco would abide by this. ” (Italics added.)
Dorothy’s testimony was concluded on recross-examination: “Q.: You indicated you gave up any further right to support except for the alimony provided in the agreement ? A.: I give up nothing. I would get increases. Q.: Well, you would give up everything except child support ? A.: No. Q.: Well, what else would you get? A.: Any increases in direct proportion to Prank’s income. Q.: That would be alimony increases in accordance with the terms of this agreement ? A.: Well, it would be increases in payments. Q.: Well, right there it says alimony will be paid to you. What did you understand that to mean? A.: Well, at this time Prank wasn’t doing too well. That was all he could afford. Q.: So then the answer to my question is yes? A.: Well, it would be increases according to the agreement, when he could have more money, yes.” (Italics added.)
While Dorothy’s apparent belief that she was certain to receive future increases in payments according to the terms of the ‘ ‘ stepladder ” clause could point to a conclusion of nonmodifiable payments, her own testimony that she received virtually all of the community assets and gave up nothing in return for 50 per cent of Prank’s present and future income before taxes (including the 20 per cent for child support), and her statements to the effect that the business was not considered to have cash value and thus was not worth discussing, weigh heavily in support of the trial court’s determination that the payments to Dorothy were in the nature of alimony and severable from the division of community assets.3
[402]This court (Schauer, J.) stated in Codorniz v. Codorniz, 34 Cal.2d 811, 815 [215 P.2d 32], in affirming modification by the trial court of support payments, that “ ' “Had the court found the provisions for support to have been in fact by way of property settlement, then the said provisions could not have been disturbed There was ample evidence to support the finding' in the instant case and we must therefore accept the same "as true. ’ ”' The court then stated that the trial court had jurisdiction to determine the question of severability, “and that that court’s findings based upon ‘ample evidence to support’ such findings are likewise binding upon an appellate court.” (34 Cal.2d at p. 815.) Also in Bradley v. Superior Court, supra, 48 Cal.2d 509, 516, decided as recently as 1957, Mr. Justice Schauer made the following statement in affirming the trial, court’s interpretation of that property settlement agreement against the appellant-husband’s reliance upon the rule that absent conflicting extrinsic evidence the trial court’s interpretation was not binding upon this court: “But where, as here, conflicting extrinsic evidence was presented, the quoted rule does not apply. On the contrary, under such circumstances if there is evidence which supports the trial court’s interpretation, including inferences which it could reasonably draw, the court on appeal will adhere to the interpretation placed by the trial court on the writings and conduct of the parties. [Citations.] (Italics added.) (48 Cal.2d at p. 516.)
The latter rule, fundamental to appellate review, has been followed in other eases such as Fox v. Fox, supra, 42 Cal.2d 49, 52, Tuttle v. Tuttle, 38 Cal.2d 419, 421-422 [240 P.2d 587], and Sasanoff v. Sasanoff, 120 Cal.App.2d 120, 128 [260 P.2d 840]. It has also been stated in numerous cases to be the rule for review of a lower court determination on the question of integration where conflicting extrinsic evidence is properly offered, including Messenger v. Messenger, supra, 46 Cal.2d 619, 626-627 (see 3 Witkin, Summary of California Law, p. 2678). It necessarily follows that to reverse the trial court where conflicting extrinsic evidence supports its im[403]plied finding is clearly contrary to established law. Nor in my opinion is it correct to treat the interpretation of the present agreement as a straight matter of law to be resolved from the face of the instrument itself, impliedly holding as does the majority opinion that receipt of extrinsic evidence of intent was error.
Additional factors supporting the determination of the trial court to hear extrinsic evidence of the parties’ intent and its holding of severability are that payments to Dorothy are stated in the agreement to he “as and for alimony and support money,” and payments are expressly stated to terminate on Dorothy's death or remarriage. (See Kelley v. Kelley, supra, 151 Cal.App.2d 228, 235.) While such designations or provisions might be immaterial in other contexts (see Plumer v. Plumer, supra, 48 Cal.2d 820, 824-825), they are worthy of consideration herein where the husband is seeking relief from the agreement by modification or elimination of the “stepladder” provisions and the agreement was drafted by the wife’s attorney.4 Uncertainties in such agreements are construed most strongly against the spouse who caused the instrument to be drafted, (Grolla v. Grolla, supra, 151 Cal.App.2d 253, 260; see 3 Witkin, Summary of California Law, p. 2678; 31 So.Cal.L.Rev. 287, 300.) Because the agreement is at least ambiguous on the question of severability the latter rule supports the trial court both in its determination to hear extrinsic evidence and its decision to hold the husband for past arrearages at the rate of $250 per month as the total amount due, thus modifying the agreement by eliminating the provisions obligating Prank to pay 50 per cent of all future income to his former wife and his children.
In my opinion the trial court with the aid of properly received and amply sufficient extrinsic evidence of the parties’ intent could well determine, as it did, that the support provisions herein were severable from the division of community property, and since the reversal of that finding is contrary to the fundamental principal that a determination on severability based upon conflicting extrinsic evidence is binding upon an appellate court, I would affirm the judgment.
Peters, J., concurred.
[404]Respondent’s petition for a rehearing was denied October 16,1963. Peters, J., and Peek, J., were of the opinion that the petition should be granted.
The basic principles affecting severability have been lucidly set forth by Mr. Justice Tobriner in Carson v. Carson (1960) 179 Cal.App. 2d 665, 669 [4 Cal.Rptr. 38], where the following statement was made in explaining why alimony payments are modifiable and payments for community assets may not be altered: “The obligations which arise between husband and wife are by no means merely consensual; the California courts have long recognized the ‘ concept of marriage as a legal institution ’ [citation] which is reflected in the California Civil Code, section 55; ‘[t]he contract is a portal through which the parties [396]enter into the relation of marriage . . .’ [citation]. ‘The relation once formed, the law steps in and holds the parties to various obligations and liabilities. ’ [citations.] Since the law fixes the extent of the obligation of support, that power of the court continues even if the parties themselves have agreed upon the amount of alimony and included it, among other and separable provisions, in a property agreement. [Citations.] On the other hand, the court has no power to change the terms of a property settlement agreement that relates only to the division of the property. [Citation.] Hence if in the agreement the provision for support is exchanged for a share of the community property, the agreement constituting an integrated all-embracing bargain, the court cannot modify its terms. To do so would be to use the parties’ discarded support provision to reach the area of property disposition, an area into which the courts would not otherwise venture.” (Italics added.)
It appears that Frank has remarried and has three children by his present wife. Also, his present wife has become a near-total invalid requiring extensive care and treatment, and he contributes to the [399]support of an aged parent. Frank’s current gross salary appears to be approximately $18,000 per annum, before taxes, of which Dorothy is claiming one half, approximately $5,400 support for herself and $3,600 for her two boys according to the terms of the “Property Settlement Agreement. ’ ’ The court mentioned during the hearing below that Frank’s arrearages under the terms of the agreement might total $36,000 (as of May 1961).
It also seems significant that at one time Dorothy’s counsel apparently believed the agreement severable and the payments to be in the nature of alimony. At the outset of the present controversy (November 1960) Drank was served with an order to show cause why he ‘ should not be declared in contempt of court and punished accordingly .for disobedience of” the interlocutory and final divorce decrees of the court which incorporated the property settlement agreement and its support provisions. Contempt proceedings are proper for delinquency [402]witli respect to ‘‘ [payments which fall into the category of law-imposed alimony”, but it is well established (and presumably well known among practitioners of California marital law) that contempt is forbidden for breach of a contractual obligation of support arising from an inseverable part of an integrated adjustment of the marital property rights of the parties. (Bradley v. Superior Court, supra, (1957) 48 Cal.2d 509, 522-523; see Hull v. Superior Court, 54 Cal.2d 139, 144-145 [5 Cal.Rptr. 1, 352 P.2d 161].)
While the law firm with which Dorothy’s counsel was associated apparently had performed services for Frank’s business, and Frank secured Dorothy’s attorney from that firm, it appears that in drafting the agreement the attorney represented Dorothy only. Frank was not otherwise represented by counsel.