Booker v. Booker

SHOEMAKEB, J. Defendant Magda Booker appeals from an order modifying a child support award from $50 to $10 per month.

On September 27, 1949, plaintiff Jerry Booker and defendant entered into a written agreement for the purpose of settling their property rights and providing for the support and maintenance of their minor child. The first six paragraphs of this agreement provided for the division of the various assets owned by the parties. Pursuant to the seventh and eighth paragraphs, the parties agreed that defendant was to have custody of the parties’ minor child and plaintiff was to pay $50 per month for the support of the child until she should either attain the age of 21, marry, or die. Paragraph 12 provided that the agreement should not bind either party “as to his or her courses concerning the marriage of the parties or any action for divorce, and the parties shall be entirely free as to their respective actions in connection therewith save and except as to the property rights of the parties.” Paragraph 13 provided that “The settlement effected hereby is and is intended to be a full and final settlement and satisfaction of all claims and rights to property which either [37]party may have against the other, . . . whether growing out of their marital relationship or otherwise, including but not limited to, right in or to community or separate property, family allowance, homestead, probate homestead, or other like or unlike matters or rights. ’'

Subsequently, on October 26, 1949, plaintiff was awarded an interlocutory decree of divorce, which incorporated, ratified, approved and confirmed “that certain agreement . . . for the settlement of the property rights of the parties” (italics added). The decree further ordered that defendant have custody and control of the parties’ minor child and that plaintiff pay defendant $50 per month for the support of the child until she should reach the age of 21, marry, or die, “or until further order of this court, whichever of the said events occurs first.” A final decree of divorce, which incorporated each of the provisions of the interlocutory decree, was entered on October 27, 1950.

Thereafter, on November 21, 1961, plaintiff moved the court for an order terminating child support. After the matter had been duly argued by counsel for both parties, the court, on January 8, 1962, made the order the subject of this appeal.

Appellant’s sole contention is that the court was without jurisdiction to reduce the child support payments,1 because the decree for child support was based upon an integrated property settlement agreement which was approved by the court and merged in the divorce decree. (Puckett v. Puckett (1943) 21 Cal.2d 833, 843 [136 P.2d 1]; Van Dyke v. Van Dyke (1954) 126 Cal.App.2d 238, 243-244 [271 P.2d 910].)