Wilson v. Wilson

Opinion

DUNN, J. On March 3, 1958, the superior court entered an interlocutory judgment of divorce between Nancy and James Wilson. Its judgment recited, among other things, that defendant James’ answer to Nancy’s complaint had been withdrawn and the matter would be heard as a default, that James must make monthly support payments to Nancy in a certain amount and that a property settlement agreement was “approved.” Pursuant to an order to show cause, filed by James in April 1974, the trial court in a minute order dated 21 August 74, modified the support provision by termination. It is from this order1 that Nancy appeals.

[118]The “Decision and Order” mentioned in the minute order, recites that James is able to continue making payments but that he argues the passage of time is, alone, sufficient to justify termination. Citing Cushing v. Cushing (1970) 3 Cal.App.3d 882 [84 Cal.Rptr. 76] in the body of its “Decision and Order,” the court concluded by saying: “Hence, the court believes espousal support must be terminated. First, on the basis time is sufficient reason alone to constitute the requisite change of circumstances; and, secondly, there are sufficient facts, such as the former wife’s living with another man, as to constitute just ground for termination, when coupled with the time element.” The “Decision and Order” pointed out that the parties married October 21, 1949, and separated after seven years, three months.

Although each litigant argues for or against the proposition that the property settlement agreement is an “integrated” one (see: Plumer v. Plumer (1957) 48 Cal.2d 820, 824 [313 P.2d 549]), we deem such a determination here to be irrelevant, since the property settlement agreement provides, in part, that “. . . said support amounts are subject to modification ... by any court having jurisdiction, in the event of changed circumstances of the parties.” Although the wife, in this court, argues that the trial court had no jurisdiction, we note that in her trial brief in the trial court the wife stated, in part: “Petitioner does not dispute here that the court has . . . the jurisdiction to entertain an action for modification of the spousal support award and the right to actually modify it.” We conclude that the trial court had jurisdiction but ruled erroneously and, accordingly, we reverse.