King v. King

FORD, J. The question presented on this appeal is whether the trial court erred in its construction of the language of a property settlement agreement.

The agreement was dated July 12, 1945. One of the provisions thereof was that several parcels of real property should thereafter be the separate property of the husband. The paragraph relating to the support of the wife and upon which the present action is based is as follows:

“The husband agrees to pay to the wife as and for her maintenance and support the sum of Two Hundred Dollars ($200.00) per month commencing on the first day of July, 1945 and on the first day of each and every month thereafter. Said payments shall continue until the death or remarriage of the wife. In the event the actual gross income of the husband, less the necessary expense of operating his office as a physician, shall be less than Ten Thousand Dollars ($10,-000.00) in any calendar year, commencing January 1, 1946, before the payment of taxes by the husband then the sum of Two Hundred Dollars ($200.00) per month payable to the wife hereunder shall be reduced in the same proportion the income of the husband is reduced below Ten Thousand Dollars ($10,000.00).”

Dr. King died on June 2, 1958. It was the plaintiff’s contention at the trial that “actual gross income” included income from all sources whereas the defendant executrix of the estate of Dr. King asserted that “actual gross income” was intended by the parties to mean only Dr. King’s professional income as a physician.1 It was stipulated that if the plaintiff’s position was found to be correct, the amount owing as of the date of Dr. King’s death was $2,900. Judgment for that amount (and for other amounts not involved on this appeal) was entered in favor of the plaintiff.

At the trial Mr. Gammon, counsel for the defendant, who had represented Dr. King in the negotiations relating to the agreement, was sworn as a witness on behalf of the defendant. After the plaintiff had objected to the proposed testimony on the ground that it could not be considered because of the parol evidence rule, the trial court stated: “. . . I will hear the ■evidence, reserving my ruling on this; and in the event that I rule affirmatively on your present objection, then it will be [717]understood that the testimony will be in the nature of an offer of proof. ...” Both counsel agreed to such procedure.

Mr. Gammon offered testimony with respect to the circumstances and conditions surrounding the execution of the document. Part thereof was as follows: “. . . in my conversations and negotiations with Leon W. Delbridge [the attorney then acting for Mrs. King] ... I had said to him that the $200 a month alimony that had been discussed on the basis of our agreement at that time would have to be tied to Dr. King’s professional income; first, that his other income—his properties were all heavily encumbered and the big income that could come from any source was from his professional income; and Mr. Delbridge stated that that would be acceptable.”2 A letter of July 5, 1945 (Exhibit F), from Mr. Delbridge to Mr. Gammon was offered to show that the written agreement was prepared by Mr. Delbridge. Another part of Mr. Gammon’s testimony related to Dr. King’s office building. He stated that he, Dr. King and Mr. Delbridge discussed the matter of the income from that property. Monthly payments had to be made on the encumbrance; in addition there were expenses for janitor and managerial services and for utilities; the resulting net rental income was small.