Codorniz v. Codorniz

TRAYNOR, J.

I dissent.

In my opinion the order affirmed herein deprives plaintiff of the share of the community property to which she is entitled under section 146 of the Civil Code.

When the divorce decree awards some property to each party and also provides-for monthly payments, without specifying whether they are part of a property settlement or alimony, it may be difficult to determine what they are. (See Puckett v. Puckett, 21 Cal.2d 833, 841 [136 P.2d 1]; Hough v. Hough, 26 Cal.2d 605, 615 [160 P.2d 15]; Adams v. Adams, 29 Cal.2d 621, 625 [177 P.2d 265].) When, as in this case, however, the court awards all the community property to the husband, the monthly payments clearly constitute part of a settlement of property rights.

It is undisputed that when the interlocutory decree of divorce was entered approximately $3,000 had been paid for the community interest in the dairy. Plaintiff was granted a divorce on the ground of extreme cruelty and was therefore entitled to at least half the community property. (Civ. Code, § 146.) The court awarded all the community property to defendant and ordered him to pay plaintiff $140 per month for the support and maintenance of herself and the three minor children. These payments were made a charge against the community property awarded to defendant. Since Civil Code, section 146, guarantees plaintiff at least half the community property, the decree ordering payments to her must be interpreted as a decree adjusting the property rights of the parties to protect her interest in the community property. The holding that the payments were alimony and subject to modification is in fact a holding that the trial court entered a decree it could not validly enter. It is settled that if a judgment is susceptible of two interpretations, one of which would make it invalid and the other valid, it must be given the interpretation that renders it valid. (Treece v. Treece, 125 Cal.App. 726, 728 [14 P.2d 95]; Watson v. Lawson, 166 Cal. 235, 242 [135 P. 961]; Webster v. Webster, 216 Cal. 485, 488 [14 P.2d 522]; Hogarty v. Hogarty, 188 Cal. 625, 627 [206 P. 79].)

In Tipton v. Tipton, 209 Cal. 443 [288 P. 65], a decree awarding the defendant all the community property, consisting of real estate worth $2,500 and an automobile, was reversed on the ground that Civil Code, section 146, guarantees the plaintiff at least half the community property when the divorce is granted on the ground of extreme cruelty. The majority opinion attempts to distinguish the Tipton case on the ground that the trial judge considered the $3,000 equity in the dairy business to be “practically valueless.” A $3,000 equity in a dairy business worth $30,000 is not “practically valueless.”

At the very least, the equity in the dairy had the value of a right to complete the purchase of the one-third interest. Whatever the court thought of the value of the property, there can be no doubt that had there been no award of monthly payments plaintiff would have been deprived of her share thereof. She is just. as much deprived of that share when the court terminates the payments on the ground that they were alimony.

Community property is often a going business managed by the husband. It may then be to the best interests of both parties to avoid liquidation of the business by awarding the wife her share of the property in the form of monthly payments. Such a division will be equitable, however, only if those payments are treated, not as alimony, but as part of a property settlement not subject to modification. If, for example, the community property is worth $200,000 and the decree provides that the husband receive all of it and that the wife on the basis of her life expectancy receive $500 per month, and one year after her divorce the wife remarries, it would be manifestly inequitable to hold that the payments were alimony and therefore terminated, for she would then receive only $6,000 in lieu of community property worth at least $100,000. The inequity is just as real if the amount involved is small.

There can be no stability to such property settlements if the court, as in this case, uses defendant’s earnings some three years after the decree was entered as a basis for a determination that all the community property was properly awarded to him. A business of great value may still not make a profit. It may be profitable at the time a divorce decree is entered but unprofitable thereafter. When the husband agrees to make monthly payments in lieu of liquidating the business, he assumes the risk that it may not be so profitable or of such value as he supposed. If the trial court erred in making that choice for him in the divorce decree, his remedy is by appeal. “A divorce decree adjusting the property rights of the parties is not subject to modification regardless of whether or not it is based upon the agreement of the parties.” (Puckett v. Puckett, 21 Cal.2d 833, 840 [136 P.2d 1].)

It is clear from the record that the trial judge concluded that he had erred in awarding plaintiff monthly payments in lieu of her share of the community property and that he sought to correct his error in the modification proceedings. If he made an error, however, it was judicial and not clerical in character. “The judgment in this case was the identical judgment which the trial court intended to render. There was no mistake in its entry, and it expressed in apt and definite terms the conclusion at which the trial court arrived during the trial of the action. If the court misconstrued the evidence before it, or misapplied the law applicable to the facts disclosed by the evidence, or was even misled' by counsel, such an error was in no sense a clerical error which could thereafter be corrected by the court upon its own motion or in any proceeding except on motion for a new trial.” (Lankton v. Superior Court, 5 Cal.2d 694, 698 [55 P.2d 1170]; Stevens v. Superior Court, 7 Cal.2d 110, 112 [59 P.2d 988]; Estate of Burnett, 11 Cal.2d 259, 262 [79 P.2d 89]; Bastajian v. Brown, 19 Cal.2d 209, 214 [120 P.2d 9]; Barlow v. City Council of Inglewood, 32 Cal.2d 688, 692-693 [197 P.2d 721]; see, 2 McBaine, California Trial and Appellate Practice, pp. 204-214; 9 Wigmore on Evidence [3d ed.] § 2450.) Once the divorce decree became final, the trial judge was powerless to change the amount awarded to plaintiff in lieu of community property, even if he concluded that the amount awarded was excessive. He cannot lawfully do so indirectly by disregarding the community property award and holding the monthly payments to be alimony.

In any event, the award cannot be made to appear excessive unless the dual function of the monthly payments is disregarded. The decree provided, not only for a settlement of property rights, but for the support of the minor children. The amount to be allotted for this support was not specified as it should have been (cf., Puckett v. Puckett, 21 Cal.2d 833, 841 [136 P.2d 1]; Hough v. Hough, 26 Cal.2d 605, 615 [160 P.2d 15]; Adams v. Adams, 29 Cal.2d 621, 625 [177 P.2d 265]), but given the division adopted by the trial court in the modification proceedings, it appears that only one-fourth of the $140, or $35 per month, can be attributed to the wife’s share of the community property. Had the decree provided that defendant was to receive all the community property and plaintiff was to receive $35 per month for her support and maintenance and $105 per month for the support and maintenance of the minor children, there would be no question that the provision for the payment of $35 per month was part of a settlement of the property rights and therefore not subject to modification. (Hogarty v. Hogarty, 188 Cal. 625, 627 [206 P. 79]; Webster v. Webster, 216 Cal. 485, 488 [14 P.2d 522]; Puckett v. Puckett, 21 Cal.2d 833, 842 [136 P.2d 1].) It is only when the amounts properly attributable to child support are treated as relevant to the division of the community property that the total award is made to appear too large to be reasonably attributable in part to a division of the community property.

The payments were ordered “as and for the support and maintenance of Plaintiff and the minor children of the parties hereto.” In view of the disparity between the total award and an amount appropriate solely for a division of the community property, it would be unreasonable to conclude that it was intended that the total amount continue to be payable after the parental duty of support had terminated. (Putnam v. Putnam, 51 Cal.App.2d 696, 699 [125 P.2d 525]; Meek v. Meek, 51 Cal.App.2d 492, 495 [125 P.2d 117].) Had the decree properly segregated the amounts attributable to child support, there would be no problem in determining what reduction should be made. When the decree is silent on the question of allocation, however, it has been held proper for the trial court to determine the reasonable allocation in subsequent proceedings. (Putnam v. Putnam, supra; Meek v. Meek, supra.) In this ease the trial court has determined that $35 per month is the amount attributable to the support of each child. Accordingly, the order should be affirmed to the extent that it reduces the payments attributable to the support of the children by $35 per month in view of the marriage of the eldest child. The unqualified affirmance of the order, which terminates plaintiff’s right to receive $35 per month, deprives her of her share of the community property in violation of section 146 of the Civil Code.

Appellant’s petition for a rehearing was denied March 27, 1950. Traynor, J., voted for a rehearing.