Dimarco v. Dimarco

McCOMB, J. Plaintiff appeals from (1) an order of the trial court holding that a property settlement agreement in a divorce action, made by plaintiff and defendant, was nonintegrated; and (2) rulings denying plaintiff (a) the right to be furnished with copies of defendant’s income tax returns, (b) a judicial determination of the sum to which she became entitled by reason of a provision contained in the property settlement agreement providing for increases in periodic payments, and (c) a writ of execution to compel payment of the amount accrued under a sliding scale provision in the property settlement agreement. Facts: (i) October 3, 1951, plaintiff and defendant entered into a property settlement agreement providing, among other things, that the parties “desire to settle all their respective property and other rights”; that plaintiff was to have the physical custody of the two children of the marriage; that plaintiff was to receive all the household furniture; that defendant was to receive the automobile of the parties, together with “all interest, partnership or otherwise in and to that certain public relations business known as DiMarco-Von Lowenfeldt Associates . . . together with all equipment, accounts receivable and assets of whatever kind of said business. ’ ’ Under the agreement defendant agreed “to pay . . . directly to the wife [plaintiff] until her death or remarriage as and for alimony and support money the sum of $150.00 each month” and $100 per month for the support of the two children. Defendant also agreed to pay the premiums on certain insurance policies and pay other bills and expenses of the parties. The agreement then recited: “All monthly payments herein agreed to be made by the husband, [excepting the support for the children and insurance premiums], shall forever cease immediately upon the remarriage of the wife” and “In the event of an increase from any source in husband’s present income of approximately $6,000 annually, net before taxes, then the monthly payments herein provided for . . . shall be increased in direct proportion. ...” — 390 — In order to. determine defendant’s income, the agreement recited: “ [HJusband shall during the term of this agreement keep full and accurate books of account of his business and professional activity and furnish to the wife by mail, immediately following the end of each calendar year hereafter, a certified statement by a Certified Public Accountant, of his annual income, and copies of his respective state and federal income tax returns and declaration of estimated income tax return, and such statement and returns shall be deemed prima facie proof of the income of the husband so far as is required for the purpose' of this agreement, subject to the right hereby granted, of the wife on written request to have a Certified Public Accountant of her own choice examine the records and books of account of said Prank DiMarco. ’ ’ The agreement concluded by reciting: “The parties do hereby release each other and relinquish to each other all right of support, alimony or community property rights, including the right to inherit ... except as herein provided, and do accept this agreement ... in full settlement of any and all rights arising out of their marriage, except as herein provided .... This agreement when executed by both shall be admitted in evidence, incorporated in and made a part of any interlocutory divorce decree which may be entered in the proceedings hereinabove referred to . . . .” (ii) October 10, 1951, plaintiff filed a complaint for divorce against defendant, charging him with extreme cruelty. (iii) October 18, 1951, the case came on for trial, and an interlocutory decree of divorce was entered, setting forth that plaintiff was entitled to a divorce at the end of one year on the ground of defendant’s extreme cruelty. Under the decree, it was ordered (a) that “the Property Settlement Agreement dated October 3, 1951, and filed concurrently herein, be and the same is hereby approved and incorporated in and made by reference a part of this decree ...”; (b) that defendant pay for the support of plaintiff and the minor children the sum of $150 per month for plaintiff and $50 per month for each of the children, as provided in the agreement; and (c) that defendant “do all things agreed to be done by him under the terms of said Property Settlement Agreement.” A right was reserved to modify the provisions of the decree for the support of the children only. (iv) October 20, 1952, a final decree of divorce was entered, declaring “that this Court does hereby approve and — 391 — confirm and make a part of this decree the provisions of that certain Property Settlement Agreement made and entered into between the parties hereto and executed by them on October 3, 1951” and that “defendant pay as and for the support of the said plaintiff and the said minor children, the sum of $150.00 per month for plaintiff, and $50.00 per month for each of said minor children, as provided for in said Property Settlement Agreement, and do all things agreed to be done by him under the terms of said Property Settlement Agreement, reserving to the Court, however, the right to modify hereafter provisions for the support of said minor children. ’ ’ (v) November 16, 1960, plaintiff obtained an order to show cause directed to defendant, seeking an order that execution issue to compel payment of amounts she alleged were due under the final decree of divorce, and asking that defendant be ordered to (a) furnish certified statements of his income for the years 1952 through 1960, (b) permit plaintiff to examine income tax records and books of account of defendant for said years, and (e) pay increased installments under the terms of the decree and the property settlement agreement. (vi) May 1, 1961, the trial court held the property settlement agreement to be nonintegrated; ruled that plaintiff was not entitled to inspect defendant’s income tax returns; ordered that defendant pay plaintiff, in installments, $1,480 found to be owing in arrearage; and denied further relief. Questions: First: Was the property settlement agreement between the parties an integrated agreement f Yes. (1) An agreement between husband and wife providing that the purpose of the parties is to reach a final settlement of their rights and duties with respect to both property and support, that they intend each provision to be in consideration for each of the other provisions, and that they waive all rights arising out of the marital relationship except those expressly set out in the agreement will be deemed conclusive evidence that an integrated agreement was intended. (Plumer v. Plumer, 48 Cal.2d 820, 825 [6] [313 P.2d 549]; Messenger v. Messenger, 46 Cal.2d 619, 628 [2b, 3b] [297 P.2d 988].) (2) The absence in a property settlement agreement of any statement that the support provisions constitute reciprocal consideration for the property provisions is not conelu — 392 — sive if there, is other proof of the parties’ intent. No such statement appears in the property settlement agreement involved in Plumer v. Plumer, supra. (See also Dexter v. Dexter, 42 Cal.2d 36, 43 [9] [265 P.2d 873]; Clark v. Clark, 198 Cal.App.2d 521, 531 [17 Cal.Rptr. 652]; Grolla v. Grolla, 151 Cal.App.2d 253, 259 [10] [311 P.2d 547].) (3) The fact that support payments may be designated “alimony,” while entitled to some consideration in an effort to ascertain the intent of the parties, is not controlling. (Messenger v. Messenger, supra, 46 Cal.2d at p. 625; Grolla v. Grolla, supra, 151 Cal.App.2d at p. 258 [5].) (4) The fact that a property settlement agreement looks to the future and is geared for revision upwards does not require an inference of severability. (See Bradley v. Superior Court, 48 Cal.2d 509 [310 P.2d 634]; Burr v. Crellin, 159 Cal.App.2d 275 [323 P.2d 830]; Arthur v. Arthur, 147 Cal.App.2d 252, 256 [305 P.2d 171].) (5) Where a husband and wife have made provisions for support and maintenance an integral part of their property settlement agreement, the support payments will ordinarily have a dual character. To the extent they are designed to discharge the obligation of support and maintenance, they will ordinarily have the indicia of alimony; but to the extent they represent a division of community property itself, or constitute an inseparable part of the consideration for the property settlement, they are not alimony and accordingly cannot be modified without changing the terms of the property settlement agreement. (Dexter v. Dexter, supra, 42 Cal.2d at p. 41 [4].) Applying the foregoing rules to the present case, it is apparent that the property settlement agreement was an integrated one. It deals with both rights to marital property and rights to support. In it, the parties have set forth that they had insurmountable differences, contemplated a divorce action, and desired “to settle all their respective property and other rights.” They have released each other from all claims arising out of the marital relationship except as provided in the agreement. Accordingly, the inference is clear that they intended an integrated agreement. It is unnecessary that the parties expressly recite such an intent when the agreement itself makes the intent clear. (Plumer v. Plumer, supra, 48 Cal.2d at p. 825 [8]; Dexter v. Dexter, supra, 42 Cal.2d at p. 41 [3].) — 393 — It was pointed out in Messenger v. Messenger, supra, 46 Cal.2d at page 626 [3a], that if a husband and wife intend that support and maintenance payments required to be made under the terms of an agreement between them will be alimony separable from a division of the property, they would not include in their agreement a waiver by the wife of future support and maintenance other than as provided therein, since an order allowing alimony is subject to revision at any time. As indicated above, such a waiver was included in the agreement between plaintiff and defendant. Second: Is plaintiff entitled to inspect defendant’s business records in order to determine the amount due under the sliding scale provision in the property settlement agreement? Yes. In the property settlement agreement defendant agreed that plaintiff should have the right to inspect his business records and income tax returns to determine the amount of his income. The agreement expressly provided that defendant should, during the term of the agreement, keep full and accurate books of account of his business and professional activities and furnish plaintiff by mail, immediately following the end of each calendar year thereafter, a certified statement by a certified public accountant of his annual income and copies of his respective state and federal income tax returns and declarations of estimated income tax, and that such statements and returns should be deemed prima facie proof of the income of the husband so far as necessary for the purpose of the agreement. Third: Was plaintiff entitled to a determination by the trial court of the amount due her under the terms of the property settlement agreement ? Yes. Clearly, in view of the above conclusions, plaintiff was entitled to such a determination. Fourth: Was plaintiff entitled to a writ of execution to enforce her rights under the agreement? Yes. Section 681 of the Code of Civil Procedure provides that the party in whose favor a judgment is given may, at any time within 10 years after the entry thereof, have a writ or order issued for the execution or enforcement of the judgment.* — 394 — " This section' has been applied to judgments involving, accrued payments under divorce decrees. (Lohman v. Lohman, 29 Cal.2d 144, 150 [173 P.2d 657]; cf. Wolfe v. Wolfe, 30 Cal.2d 1, 3 [2] [180 P.2d 345]; Millard v. Millard, 102 Cal.App.2d 249, 250 [1] [22 P.2d 477] [hearing denied by the Supreme Court].) There is no merit in the contention that the doctrine of ''laches was applicable in the present case. Since plaintiff’s rights are based upon a judgment for the payment of money, she can, by the terms of section 681 of the Code of Civil Procedure, enforce her rights at any time within 10 years, and she is entitled to do so whether or not the judgment is modifiable. (Cf. Bryant v. Bryant, 161 Cal.App.2d 579, 582 [4] [326 P.2d 898].) Neither is there any merit in the contention that the issuance of a writ of execution to permit plaintiff to enforce the rights she acquired by the property settlement agreement would cause hardship to defendant. (See Di Corpo v. Di Corpo, 33 Cal.2d 195, 201 [7] [200 P.2d 529].) The order and rulings herein questioned are reversed. Gibson, C. J., Traynor, J., Schauer, J., and Tobriner, J., . concurred. Footnotes [*] Section 681 of the Code of Civil Procedure provides: “The party in whose favor judgment is given may, at any time within 10 years after the entry thereof, have a writ or order issued for the execution or enforcement of the judgment.. . .”