ALEXANDRINE VERDIER, Appellant, v. PAUL VERDIER, Respondent, 36 Cal. 2d 241

TRAYNOR, J. In her “Complaint fob Maintenance, Division of Community Peopebty, and Otheb Relief,” plaintiff alleges that she and defendant were married in Paris, France, on December 27, 1918 and lived together as husband and wife until January 10, 1937, when they separated pursuant to a separation agreement executed on that date.

By the terms of the agreement, attached to the complaint as “Exhibit ‘A’ ”, defendant agreed “to provide his said wife with an income of not less than $500.00 a month for her support and maintenance, and to pay said monthly sum to her on or before the 5th day of each month commencing with the month of February, 1937. Said sum of $500.00 is approximately one-half the salary now received by Paul Yerdier, less payments for interest and taxes.

In case his income increases, it is understood and agreed that he will pay monthly to his said wife in addition to the amounts hereinabove mentioned one-half of such increase.” The terms and conditions of the agreement were fully performed until March, 1942, but after that date, “defendant Yerdier failed and refused and neglected to perform the terms and conditions of said writing, Exhibit ‘A’ hereto, on his part to be performed and failed and refused to pay the plaintiff the sum of $500 per month or any greater sum on account of any increase in his income.” Defendant represented to plaintiff that he was not financially able to make further payments under the 1937 agreement and requested a modification thereof.

Plaintiff alleges that these representations were false and fraudulent but that she was not then aware of their falsity. In reliance on defendant’s representations plaintiff agreed to a modification of the provisions for her support by a second written agreement dated May 11, 1946, attached to the complaint as “Exhibit ‘B’ ”. Plaintiff’s support payments were reduced to $400 per month and defendant paid her $10,000 in settlement of her claim for accrued payments under the 1937 agreement.

Defendent thereafter performed the terms and conditions of the agreement as modified through July, 1948, but “Thereafter, although demand was made upon him to do so, defendant Yerdier failed, refused and neglected and still fails, refuses and neglects to pay to plaintiff any sum whatsoever.” Plaintiff’s complaint was filed October 2, 1948.

Plaintiff prays for judgment that the 1946 agreement be rescinded by reason of defendant’s fraud in its procurement, that defendant and his agents be enjoined from selling, mortgaging, or otherwise disposing of the community property of plaintiff and defendant or the separate property of either of them except pursuant to court order, that defendant be required to pay plaintiff $250 for expenses of plaintiff’s travel from New York to San Francisco to attend hearings, $1,000 per month beginning August 1, 1948, for plaintiff’s support and maintenance, $1,000 for costs of prosecution of the present action, $1,500 auditor’s fees, and $5,000 counsel fees pendente lite, and that “plaintiff have judgment herein against defendant Paul Yerdier determining the community rights of plaintiff and defendant Paul Verdier and disposing of their community property and providing for the permanent súpport and maintenance of plaintiff and further providing that defendant Verdier give reasonable security for providing said support and maintenance and making any other payments required by this Court." Concurrently with the filing of her complaint, plaintiff procured an order to show cause why defendant should not be required to pay her pendente lite relief, accompanied by her affidavit that defendant had wilfully failed to provide for her support and that “I have been, since August 1, 1948, and now am, without funds or property, or any means of support whatsoever." In his return thereto, defendant asserted that by reason of the existence of the 1937 agreement the court “is without power or jurisdiction" to require defendant to make the requested payments.

After a hearing on the order and the return, the court concluded that it was without jurisdiction to award pendente lite relief and entered an order discharging the order to show cause. Plaintiff appeals. It is conceded that the trial court’s order was not based upon an adjudication of the merits of plaintiff’s request for pendente lite relief hut solely upon its conclusion that it had no jurisdiction to determine the merits thereof. (See Robinson v.

Superior Court, 35 Cal.2d 379, 383 [218 P.2d 10].) The question presented by this appeal therefore is: May a wife living separate and apart from her husband by agreement maintain an action under Civil Code,

section 137, for permanent support and maintenance upon her husband’s failure to perform the agreement, if she does not also attack the agreement or seek to set it aside? The allegations and prayer of plaintiff’s complaint are consistent with the maintenance of such an action. She alleges that defendant has wilfully failed to provide for her support although he “is abundantly able financially to make payments” therefor, and she prays for judgment “providing for the permanent support and maintenance of plaintiff” and dividing their community property.

Section 137 authorizes the court to make pendente lite awards “during the pendency of any such action.” (Warner v. Warner, 34 Cal.2d 838, 840 [215 P.2d 20]; Baldwin v. Baldwin, 28 Cal.2d 406, 418 [170 P.2d 670]; Mudd v. Mudd, 98 Cal. 320, 321 [33 P. 114]; Loeb v. Loeb, 84 Cal.App.2d 141, 144-145 [190 P.2d 246].) Defendant contends, however, that the present action cannot be brought under

section 137 for permanent support and maintenance for the reason that “when a husband and wife are living separate and apart by agreement, and that agreement provides for stipulated support, an action based upon that agreement and to rescind an amendment thereto, is not and cannot be, an action for permanent maintenance and support, and if not for permanent maintenance and support, the court cannot award interim relief.” In his view, plaintiff can maintain an action under

section 137 only if she attacks the 1937 agreement and seeks to set it aside. If she pleads the existence of the agreement and does not attack its validity, defendant contends that her action is necessarily an action on the contract and not an action for permanent support and maintenance. An action for support and maintenance under

section 137 is not barred by the existence of an unperformed separation agreement. The allegation of such an agreement is essential to plaintiff’s cause of action under

section 137. Plaintiff and defendant are living separate and apart by agreement (Civ. Code, §159), and defendant is not “liable for her support when she is living separate from him, by agreement, unless such support is stipulated in the agreement.” (Civ. Code, § 175.) To establish her husband’s failure to provide for her support, therefore, it was essential that plaintiff establish a continuing duty to provide support by the allegation of an agreement in which “such support is stipulated.” The agreement preserves the husband’s duty of support and prescribes the terms upon which that duty may be discharged.

It is not the agreement alone, however, but the performance thereof that discharges that duty. (Bay District Claim Service, Ltd. v. Jones, 136 Cal.App. Supp. 789, 791 [24 P.2d 977]; Cram v. Cram, 116 N.C. 288, 294 [21 S.E. 197].) If the husband has wilfully failed to perform the agreement, an allegation of such failure is a sufficient allegation of his wilful failure to provide for plaintiff under

section 137. (Cram v. Cram, supra.) Defendant, however, contends in effect that although plaintiff must allege the 1937 agreement and its breach to state a cause of action under

section 137, she cannot maintain such an action unless she also attacks the agreement. This contention is opposed to the weight of authority. A separation agreement that the husband has failed to perform is not a bar to the wife’s action for separate maintenance, even though she does not repudiate the agreement or seek to set it aside. (See cases collected in 10 A.L.R.2d 536-540.) The wilful breach of the agreement may be asserted as a ground of the action for permanent support and maintenance.

The agreement must be alleged as an essential element of the wife’s cause of action, but its support provisions may also be relied upon as a proposed measure of the husband’s duty of support. (Bradford v. Bradford, 296 Mass. 187, 189 [4 N.E.2d 1005]; French v. French, 302 Ill. 152,161 [134 N.E. 33].) An attack upon the agreement is not a prerequisite to an action for separate maintenance or for divorce. (Moog v. Moog, 203 Cal. 406, 408 [264 P. 490]; Locke Paddon v. Locke Paddon, 194 Cal. 73, 81 [227 P. 715]; Steinmetz v. Steinmetz, 67 Cal.App. 195, 198 [227 P. 713]; French v. French, supra; Bradford v.

Bradford, supra; Cram v. Cram, 116 N.C. 288, 294 [21 S.E. 197]; see, also, Hough v. Hough, 26 Cal.2d 605, 609-610, 612 [160 P.2d 15]; Smith v. Smith, 94 Cal.App. 35, 47 [270 P. 463]; 166 A.L.R. 675; 109 A.L.R. 1068.) “Even if the agreement be not void it is subject to the sanction of the court and does not deprive the court of its power to grant temporary alimony under the statutory authority therefor.” (Locke Paddon v. Locke Paddon, supra, 194 Cal. 73, 81; see, also, Steinmetz v. Steinmetz, 67 Cal.App. 195, 198 [227 P. 713]; Davis v. Davis, (Ohio App.) 51 N.E.2d 288, 289; Robinson v.

Robinson, 87 Wash. 520, 522-523 [151 P. 1128, L.R.A. 1916B 919]; 1 Nelson, Divorce and Annulment, §§ 12.40, 13.42, pp. 440, 521.) It is entirely appropriate, therefore, for plaintiff to rely upon the breach of the agreement as the basis of her action and to offer the agreement as a standard or measure of her husband’s duty of support.

The court is not bound by the terms of the agreement; by seeking a decree for her support and maintenance plaintiff submits to the power of the court to enter a decree providing for her support upon different terms or in a different amount from that provided by the agreement. (Adams v. Adams, 29 Cal.2d 621, 624-625 [177 P.2d 265]; Hough v. Hough, 26 Cal.2d 605, 612-613 [160 P.2d 15]; cf., Cameron v. Cameron, 85 Cal.App.2d 22, 28 [192 P.2d89].) The agreement does not survive the entry of the decree. From the date of its entry the decree is the sole measure of plaintiff’s right to support.

" ‘ [T] he separation agreement is superseded by the decree, and the obligations imposed are not those imposed by contract, but are those imposed by decree, and enforceable as such. ’ ’ ’ (Hough v. Hough, supra, 609-610.) The decree in such an action may be thereafter modified by the trial court on a proper showing therefor whether or not a power of modification is expressly reserved in the decree. (Monroe v. Superior Court, 28 Cal.2d 427, 429-430 [170 P.2d 473]; Adams v. Adams, supra, 624-625; Hough v. Hough, supra, 611-613.) Nothing in the decision of this court in Patton v.

Patton, 32 Cal.2d 520 [196 P.2d 909], supports defendant’s position. In that case the parties had agreed to live separate and apart, but the agreement did not stipulate for the support of the wife. The agreement was a property settlement, in which, in consideration of the payment to her of a specified sum, the wife waived all rights to support, maintenance, costs, or attorney’s fees in any later action.

Property settlement agreements, unlike those providing for support and maintenance, are binding on the court if not induced by fraud or duress or in violation of the confidential relationship of the parties. (Adams v. Adams, supra, 29 Cal.2d 621, 624-627.) The court is not at liberty to disregard such an agreement or to enter a decree that modifies any of its terms. A decree incorporating such an agreement may not thereafter be modified. (Hough v.

Hough, supra, 612, and cases cited therein.) In the Patton case, the wife sought to retain the benefits of the property settlement and to secure a decree for her support and for temporary alimony and counsel fees pendente lite inconsistent with her express waiver thereof. Relying on Adams v. Adams, supra, this court stated that “Under these circumstances . . . the contract ‘stood in the way ... of any judgment for plaintiff’s support contrary to or inconsistent with its provision, and the court could not properly ignore its existence. ’ ” (Patton v. Patton, supra, 524; see, also, Majors v.

Majors, 70 Cal.App.2d 619, 627 [161 P.2d 494].) In the present case, however, the agreement submitted to the court is one for support and maintenance. It contains no waiver of temporary support or counsel fees. (See Estate of Minier, 215 Cal. 31, 36 [8 P.2d 123, 81 A.L.R. 689].) The court may modify or reject it in entering a decree for plaintiff’s permanent support and maintenance. Defendant contends, however, that plaintiff has elected to stand on her rights under the 1937 agreement and to seek specific performance thereof, rather than to seek a decree for her permanent support and maintenance under

section 137. If the remedy of specific performance is available to enforce a contract made pursuant to Civil Code,

section 159 (cf., Hough v. Hough, supra, 26 Cal.2d 605, 611), the terms of the agreement would limit the judgment that could be entered. Such a judgment would be beyond the power of the court to modify thereafter, and plaintiff’s rights would be based upon the agreement and not upon the power of the court to order her husband to provide for her permanent support and maintenance under

section 137. In an action on the contract plaintiff would not be entitled to temporary support or counsel fees pendente lite. Relief by way of specific performance would be inconsistent with relief under

section 137 in that in the former case temporary support and counsel fees could not be granted and the court would be without power to vary the support provisions provided in the contract. In her complaint plaintiff has alleged the existence of the 1937 agreement and defendant’s wilful breach thereof. These allegations are consistent with either an action to enforce the 1937 contract as such or an action for relief under

section 137. By her prayer, however, plaintiff seeks a “judgment . . . providing for the permanent support and maintenance of plaintiff” in the amount of $1,000 per month, which was not the amount specified by the contract, for counsel fees and temporary support, for a division of the' community property, and for similar relief that is consistent only with the theory that the action is brought under

section 137 for permanent support and maintenance. Although plaintiff did not wish to attack the validity of the 1937 agreement and was willing to have it serve as a measure for the relief under

section 137, she did not indicate that she wished the court to be bound by its terms. The transcript clearly indicates that the court and counsel were concerned solely with the question whether it was necessary for plaintiff to attack the 1937 agreement to establish jurisdiction for an award of temporary support and counsel feeg. The decision of the court was not based upon the conclusion that plaintiff had elected to sue on the contract but upon the conclusion that on the allegations of her complaint no other remedy was available to her.

If plaintiff is in fact seeking to maintain inconsistent actions, she can be required to elect between them. The election, however, must be made by plaintiff in the trial court and not by this court on appeal. The order is reversed and the cause remanded for further proceedings in conformity with the views expressed herein. Gibson, C. J., Edmonds, J., and Spence, J., concurred. "When the husband wilfully fails to provide for the wife, she may, without applying for divorce, maintain in the superior court an action against him for permanent support and maintenance. . . .

During the pendency of any such action the court may, in its discretion, require the husband ... to pay as alimony or as costs of action or as attorney’s fees any money necessary for the prosecution of the action and for support and maintenance. . . . The court, in granting the husband or wife permanent support and maintenance ... in any such action, shall make the same disposition of the community property and of the homestead, if any, as would have been made if the marriage had been dissolved by a court of competent jurisdiction.

The final judgment in such action may be enforced by the court by such order or orders as ... it may . . . deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court.”