Maytag v. Maytag

Opinion

KLEIN, P. J. — David D. Maytag (husband) appeals an order dismissing his order to show cause (OSC) for modification of spousal support for lack of jurisdiction.

The issue presented is whether the trial court had jurisdiction to modify the parties’ support agreement.

For the reasons discussed below, the trial court had jurisdiction to proceed. The order therefore is reversed and the matter is remanded for further proceedings.

[1713]Factual and Procedural Background

The parties separated in January 1970, after nearly nine years of marriage. Effective May 1, 1970, prior to entry of either an interlocutory or final judgment of dissolution, the parties entered into a marital settlement agreement (MSA), requiring husband to pay monthly spousal support. The MSA was not submitted to the trial court for approval or implementing orders. Further, the MSA was not referred to, attached as an exhibit to, merged or incorporated into the interlocutory or final judgments of dissolution. Both the interlocutory and final judgments were silent as to spousal support.

Twenty-two years later, in August 1992, husband filed an OSC seeking to modify his spousal support obligation on the ground of a change in circumstances. Husband contended the trial court had jurisdiction under Civil Code former section 4811 (section 4811), subdivision (b), which stated the provisions of “any agreement or order” for the support of either party are subject to modification or revocation by court order.1

The trial court ruled it lacked jurisdiction to consider the OSC because the MSA has not been submitted to the court for approval and implementing orders and the interlocutory and final judgments did not contain any provision for spousal support. On March 19, 1993, the trial court dismissed the OSC.

Husband brought a motion for new trial, which was denied. Husband appealed.

Contentions

Husband contends: (1) section 4811 gave the trial court jurisdiction to decide his OSC even though the parties’ MSA was not made part of a judgment or order; (2) the legislative history of section 4811 establishes the statute was intended to give a court power to modify agreements for spousal support, even where the agreement had not become part of a judgment; (3) case law interpretation of section 4811 also establishes the trial court had jurisdiction.