Jackson v. Jackson

Defendant has appealed from an order which determined his arrearages under the provisions of a property settlement agreement, and ordered that execution issue for that sum. (See Code Civ. Proc., § 963, subd. 2; and Crowley v. Superior Court (1936) 17 Cal.App.2d 52 , 54 [ 61 P.2d 372 ].) He contends that the court had no jurisdiction to make that order in the divorce proceedings because (1) the provisions of the settlement agreement were not effectively merged in the divorce decree; (2) the issue of whether those provisions were incorporated in the divorce decree had been previously determined adversely to plaintiff wife by an order which became final in the absence of any appeal on her part; and (3) the wife’s motion for appointment of a receiver did not encompass the relief actually granted.

A review of the record and applicable law demonstrates that the provisions of the settlement agreement were merged in the divorce decree to the extent that the agreement should be enforced in the divorce proceedings. Although a prior order, from which no appeal was taken, found nonmerger as an alternative ground for dismissing proceedings to construe the agreement, the particular circumstances of this case preclude defendant’s reliance on the principle of res ad judicata to defeat plaintiff’s pending and subsequent applications for relief in the divorce proceedings. The pendency of the motion for appointment of a receiver warranted the court’s order which directed the issuance of a writ of execution.

Statement of Facts

On September 12, 1963, plaintiff wife filed her complaint for divorce in which she set forth the requisite jurisdictional and statistical facts, a list of the community property of the parties, and her grounds for divorce. Her prayer for relief included the following: “That the court order defendant to pay a reasonable amount each month for the support and maintenance of plaintiff. ’ ’

Defendant husband filed an answer in which he admitted the jurisdictional and statistical facts, and the extent and nature of the community property, but denied the remaining allegations of the complaint.

On December 20, 1963, the parties executed an agreement in which they provided for a division of the community property, for monthly payments by the husband to the wife, and,

The defendant and his attorney filed a stipulation waiving notice of time and place of trial and findings of fact and conclusions of law; and on December 23, 1963 the matter was heard as an uncontested divorce. The interlocutory decree signed and filed that day granted the wife’s prayer for a divorce, and further recited: “It is Further Ordered, Adjudged and Degreed that the property settlement agreement entered into by the parties and dated December 20, 1963, be and the same is hereby confirmed and approved and each of the parties hereto is hereby ordered to perform all of the conditions and covenants contained in said property settlement and agreement.” No copy of the agreement was attached to the interlocutory decree, nor was it otherwise made a part of the clerk’s record of the proceedings. It must be assumed, from the provisions of the decree, that the property settlement agreement was examined by the court, and was, therefore, part of the evidence considered, whether formally offered and received in evidence or not.

Thereafter, the defendant changed attorneys, and on June 22, 1964 filed his “Notice of Motion to Set Aside Entry of Interlocutory Judgment.” According to his affidavit the basis

In May 1965 plaintiff wife served and filed a notice of motion for an order appointing a receiver and for attorneys’ fees in which she stated, “that defendant has failed to make payments under the property settlement agreement of the parties approved by the court in the amount of $229.00 per month since September, 1964, ...” She alleged that a receiver was necessary to collect defendant’s paycheck because his federal salary was exempt from execution. The attorneys’ fees were sought for services rendered in resisting defendant’s attempts to set aside the agreement, and in efforts to collect the sums legally owing.

Following hearings on the foregoing motion on June 22 and July 8, 1965, defendant countered with his “Motion and Notice of Motion for Declaration of the Existing Obligations of the Parties.” He sought an “order declaring the existing obligations of the parties hereto, and more particularly determining whether there are or are not any monies now owed by the defendant to the plaintiff under the terms of the decrees of divorce heretofore entered in the within cause, approving that property settlement agreement between the parties dated December 20, 1963.” This motion, and the pending prior motion of plaintiff came on for hearing in the law and motion department of the court on August 5, 1965, and the judge thereupon transferred defendant’s motion to the domestic relations department, stayed the proceedings in which the plaintiff sought a receiver, and awarded her the attorney’s fees she sought.

Defendant again changed attorneys. His motion subsequently was heard in the domestic relations department of the court on October 6th. On November 15, 1965 an order was filed which read as follows: “1. Determination of whether the property settlement agreement herein is an integrated one was heretofore made [November 20, 1964] and is res judicata as to that issue. 2. The said property settlement agreement was never incorporated in nor made an integral part of either the interlocutory or final decree herein. 3. The Court has no jurisdiction to rule on the motion of defendant for an interpretation of the agreement in this proceeding because of the foregoing.” '

The. plaintiff wife -then renewed her motion for the appointment-of a receiver, and'requested'additional attorneys'” fees. Defendant filed opposition on the grounds, that the agreement upon which the alleged obligation was predicated was not

When plaintiff sought relief in May 1965 she also assumed that the agreement was merged in the interlocutory and final decrees. The defendant’s motion filed July 26, 1965 did not attack the jurisdiction of the court on the ground that the agreement was not merged in the decrees, but requested an ‘ ‘ order declaring the existing obligations of the parties hereto, and more particularly determining whether there are or are not any monies now owed by the defendant to the plaintiff under the terms of the decrees of divorce heretofore entered in the within cause, approving that property settlement agreement between the parties dated December 20, 1963.” The order of transfer made by the law and motion department also assumed that the court had jurisdiction in the divorce proceedings to review the settlement agreement. It recites: “It Ts Hereby Ordered : 1. That defendant’s motion for interpretation of the property settlement agreement be transferred forthwith to the Domestic Relations Department of this court. ’ ’

An examination of cases dealing with the question of merger (supra, fn. 4), reveals that the courts, in determining the intent of the parties and the intent of the court rendering the decree (see Flynn v. Flynn (1954) 42 Cal.2d 55 , 58 [ 265 P.2d 865 ]) have considered the following factors: (1) recitals in the agreement which indicate that it is to be presented to the divorce court for aproval and/or incorporation in the decree; (2) the physical incorporation of the words of the agreement in either the body of the decree or as an exhibit attached thereto; (3) if not so attached, the extent to which the decree expressly purports to incorporate the provisions of the agreement, and the extent to which the agreement so incorporated can be identified from the terms of the decree; and (4) the extent to which the decree purports to order the performance of the terms of the agreement.

Two considerations may be noted. It is obvious that there is a tendency to refrain from making such an agreement, which involves the personal financial affairs of the parties,.a matter of public record. If the agreement, as presented to the court, can be readily identified without controversy, there is no reason for not indulging this normal propensity. Secondly, if it was not intended that the agreement be merged in the decrees, it was idle for the court to provide, "each of the parties hereto is hereby ordered to perform all of the conditions and covenants contained in said property settlement and agreement. ’ ’

In Foust v. Foust (1956) 47 Cal.2d 121 [ 302 P.2d 11 ], the decree not only approved the agreement, but also expressly recited that “the . . . agreement ... is ... by this reference embodied in and made a part of this judgment.” (See 47 Cal.2d at p. 124. Similar incorporation by express reference is found in Flynn v. Flynn, supra, 42 Cal.2d 55 , 57 and 59; Lubin v. Lubin (1956) 144 Cal.App.2d .781, 786 [ 302 P.2d 49 ]; and see Arthur v. Arthur (1056) 147 Cal:App.2d 252,

In Flynn v. Flynn, supra, 42 Cal.2d 55 , the decree provided that the “defendant is hereby ordered to make all of the payments provided therein to be paid by him. ’ ’ (42 Cal.2d at pp. 57 and 59.) The language, however, was buttressed by other language of express incorporation (id). On the basis of both clauses the court had no hesitancy in concluding, "In the present case, however, there can be no doubt as to the intent of the parties and the court that a merger should occur.” (Id., p. 59.) Also, in Noice v. Noice (1961) 195 Cal.App.2d 204 [ 15 Cal.Rptr. 703 ], the fact that the decree ordered performance of the terms of the agreement was considered a significant factor in showing that merger was intended (195 Cal.App.2d at p. 212).

Several cases have indicated that mere approval of the agreement is insufficient to show merger of the terms of the agreement in the decree. (Flynn v. Flynn, supra, 42 Cal.2d 55 , 58; Lane v. Lane (1953) 117 Cal.App.2d 247 , 253 [ 255 P.2d 110 ]; Hopkins v. Hopkins (1953) 116 Cal.App.2d 174 , 186 [ 253 P.2d 723 ]; Howarth v. Howarth, supra, 81 Cal.App.2d 266 , 270-273 [see also Howarth v. Howarth (1956) 146 Cal.App.2d 694 , 696 [ 304 P.2d 147 ]]; Schnerr v. Schnerr (1932) 128 Cal.App. 363 , 367 [ 17 P.2d 749 ]; cf. Gregory v. Gregory (1949) 92 Cal.App.2d 343 , 351 [ 206 P.2d 1122 ]; and see Price v. Price (1948) 85 Cal.App.2d 732 , 735-739 [ 194 P.2d 101 ], and the disapproval of that case in Flynn v. Flynn, supra, 42 Cal.2d at p. 60.) In none of those eases was there an order that the parties carry out the terms of the agreement. Furthermore, prior to the decision in Bradley v. Superior Court, supra, in 1957, there was some hesitancy in incorporating the provisions of the agreement into the divorce decree because it was believed that such incorporation automatically gave rise to the power to enforce the agreement by contempt. (See cases disapproved 48 Cal.2d at p. 522.) Neither the facts nor the rationale of the “approval” cases control the circumstances of this case.

It has been suggested that the merger of an agreement which has merely been introduced, in .evidence, and which is not otherwise a part of the record, should not be countenanced because “it could be withdrawn or destroyed and interested

The question of identification of the agreement is not a substantial issue in this ease. Even if it be assumed that the reference in the decree to the parties and the date of the agreement were insufficient, any shortcomings have long since been cured by making the agreement a matter of record in prior hearings. Those prior proceedings also manifest the parties’ intention that the provisions of the agreement be deemed a part of the divorce decree. This case is governed by the following language from Flynn: “These considerations may justify modifying the . . . decree on appeal to require that the agreement be attached to the decree. We do not believe, however, that they are sufficient to require us to hold that the decree, now final, is insufficient to effect its clearly stated intent. ” (42 Cal.2d at p. 59.)

Since the agreement was merged in the decree, and was integrated and nonmodifiable, the wife was entitled to have the sum due ascertained and to have a writ of execution issued to enforce payment of that sum. (DiMarco v. DiMarco (1963) 60 Cal.2d 387 , 393-394 [ 33 Cal.Rptr. 610 , 385 P.2d 2 ]; Foust v. Foust, supra, 47 Cal.2d 121 , 124; Hough v. Hough, supra, 26 Cal.2d 605 , 614; Tobin v. Tobin (1960) 181 Cal. App.2d 789 , 792-794 [ 5 Cal.Rptr. 712 ].) In fact, in Tobin it was held error to deny a receiver under circumstances closely analogous to those alleged by plaintiff in this ease. (181 Cal.App.2d at p. 794.)

Effect of the Prior Order

It is, therefore, necessary to determine the effect of the order made on November 15, 1965 in the domestic relations department. That portion of the order which recites,

Plaintiff asserts that the second order merely raises a conflict with the decrees and with the prior order in which the court did in fact exercise jurisdiction to determine the nature of the agreement. The general rule, however, is that where successive orders conflict, the later order will control. (See Maloney v. Massachusetts Bonding & Ins. Co. (1942) 20 Cal.2d 1 , 6 [ 123 P.2d 449 ]; Standard Oil Co. v. J. P. Mills Organization (1935) 3 Cal.2d 128 , 139 [ 43 P.2d 797 ]; and see Rest., Judgments, § 10, com. e, p. 64; § 42, p. 164; and § 67, p. 286.)

Blind adherence to the foregoing principle leads to a violation of the reasoning of Foust where the court concluded: "[W] e are satisfied that the language of the decree here shows that the agreement, filed with the stipulation, was merged in the decree, and that the manner in which the merger was effected makes the decree sufficiently certain to render it enforceable by execution. To hold otherwise would require the parties to engage in needless further litigation to merge the agreement into another decree or judgment in order to obtain the enforcement thereof by any legal process. Such idle action should not be required.” (47 Cal.2d at p. 125.)

“The rule of res ad judicata is to prevent vexatious litigation and to require the parties to rest upon one decision in their controversy, ...” (Miller & Lux, Inc. v. James (1919) 180 Cal. 38 , 44 [ 179 P. 174 ] ; and see 3 Witkin, Cal. Procedure (1954) Judgments, § 44, p. 1926.) It is obvious that the application of the rule to this case will subvert the purpose of the doctrine. It will prolong and extend the litigation between the parties and cause wasted effort and expense in judicial administration. It has twice been adjudicated that defendant is bound by the terms of the agreement and that it is nonmodi

In this case, also, the prior orders in the divorce proceedings are conflicting in part. The second order, although final, is patently erroneous. The defendant has taken inconsistent positions. This ease presents appealing circumstances for divergence from the general rule because adherence to that rule would cause more, rather than less, litigation, and would afford an opportunity for the relitigation of matters which have already been fully contested and adjudicated between the parties. The application of the rule under the circumstances of this case would defeat the ends of justice and the policy upon which the rule itself rests. The trial court properly refused to give effect to that portion of the order of November 14, 1965 which purported to divest the court of the power to enforce the provisions of the settlement agreement.

Scope of Relief

The order adjudicating the amount due and authorizing the issuance of a writ of execution was not only within the proper exercise of the powers of the court (see cases cited p. 1036, supra), but also was within the scope of the relief sought by plaintiff’s motion for the appointment of a receiver.

The provisions of section 140 of the Civil Code, which authorize the appointment of receivers, apply to payments under an integrated property settlement agreement which is merged in the divorce decree. (Tobin v. Tobin, supra, 181 Cal.App.2d 789 , 791-794.) These provisions should be construed with the general provisions pertaining to receivers found in sections 564-570 of the Code of Civil Procedure. (See McClenny v. Superior Court (1964) 62 Cal.2d 140 , 148 [ 41 Cal.Rptr. 460 , 396 P.2d 916 ] ; Murray v. Murray (1896) 115 Cal. 266 , 274-275 [ 47 P. 37 , 56 Am.St.Rep. 97 , 37 L.R.A. 626 ] ; Guay v. Superior Court (1957) 147 Cal.App.2d 764 , 768-769 [ 305 P.2d 990 ].) Generally, because of its drastic nature, receivership should not be resorted to unless other remedies are inadequate. (See Alhambra-etc. Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869 , 873 [ 254 P.2d 599 ].) Receivership may not ordinarily be used for the enforcement of a simple money judgment (White v. White (1900) 130 Cal. 597 , 599 [ 62 P. 1062 , 80 Am.St.Rep. 150 ];

The court’s order for a writ of execution may be deemed an exercise of discretion to use a less drastic remedy than that authorized by section 140 of the Civil Code, or be construed as a preliminary step to appointing a receiver in aid of execution. In either event, it is embraced within the relief which plaintiff sought in her motion.

The order of February 24, 1966, which provides for the issuance of a writ of execution, is affirmed.

Molinari, P. J., and Elkington, J., concurred.