Washburn v. Washburn

WARNS, J. pro tern.* Respondent (husband) commenced this action for divorce and the appellant (wife) answered and by way of cross-complaint also sought a divorce. While the action was pending, the parties executed a property settlement agreement whereby they undertook to settle their own property rights and in addition their outstanding obligations. Provision was made for the care, support and maintenance of their minor children. The agreement also provided that the husband pay $250 each month to the wife for her support and maintenance. Thereafter the wife obtained an uncontested interlocutory decree of divorce. The trial court found that the property settlement agreement was fair and equitable and that the $250 per month was a reasonable sum for respondent to pay to his wife for her support and maintenance. The interlocutory decree, among other things, provided that respondent pay to appellant the sum of $250 per month for her support and maintenance until the further order of the court. The property settlement agreement was confirmed and approved and was made a part of the interlocutory decree by reference. A final decree of divorce was entered on August 5, 1959.

On July 8, 1959, before the entry of the final decree, respondent secured an order directing appellant to show cause why the interlocutory decree should not be modified to provide that respondent pay appellant for her support and maintenance the sum of $100 instead of the monthly $250 provided in the interlocutory decree.

This order was heard on July 30 and on August 17, 1959. On October 8, 1959, the trial court made and entered its order whereby the interlocutory decree of divorce was modi[620]fied so as to reduce the monthly payments required of respondent to the sum of $150. The order provided that it was effective as of August 31, 1959. From this order the appellant has appealed.

Appellant first contends that the effect of incorporation of the agreement in the decree precluded its subsequent modification contrary to the provisions of the property settlement agreement, since the subject agreement does not permit reduction of the amount of monthly payments to appellant below $250 per month; and, second, that the court erred in making its order retroactive, i.e., effective as of August 31, 1959.

In Kelley v. Kelley, 151 Cal.App.2d 228, 233 [311 P.2d 90], the court said: “. . . It is settled that there is no power to modify in instances where the provisions are not severable, being but parts of an integrated agreement covering adjustment of property rights; but if they are severable the court may modify the support provisions upon a showing of changed conditions just as if they were found in a decree rendered without the aid of any underlying agreement. [Citing several cases.] The situation is not altered by incorporation of the agreement into a decree of court or by the merger resulting therefrom. [Citing cases.] The court looks through the decree to the agreement and determines the rights of the parties in this respect just as if there were no merger.