CHARLES W. FOUST, Respondent, v. ISMAY M. FOUST, Appellant, 47 Cal. 2d 121

SPENCE, J. Defendant appeals from an order quashing execution and restraining the sheriff from selling plaintiff’s property. The only question to be determined is whether a property settlement agreement had been so merged into an annulment decree that its provision for monthly payments became an operative part thereof, enforceable by execution. The trial court held that it had not but the record does not sustain its ruling. The parties separated 14 years after their marriage.

Plaintiff husband then commenced this action for “annulment of marriage and determination of property rights.” Defendant wife cross-complained for divorce and the settlement of property rights. Thereafter and on July 21, 1943, the parties entered into a property settlement agreement and stipulated that an annulment decree might be entered declaring the marriage null and void from its inception. The property settlement agreement provided, among other things, that plaintiff pay defendant $50 a month for life or until her remarriage.

The agreement was attached as an exhibit to the stipulation, and both documents were filed with the court. The annulment decree was entered July 22, 1943.

Following the wording of the stipulation, the decree ordered and adjudged: ‘ ‘ That the properties and property rights of plaintiff and defendant herein are adjusted, settled and distributed as per the terms and conditions of that certain Agreement dated July 21st, 1943, executed by plaintiff and defendant herein, a full and true copy of which Agreement is on file herein attached to said Stipulation marked ‘Exhibit “A,” ’ and which is hereby approved by the Court and by this reference embodied in and made a part of this Judgment.” Plaintiff failed to make the prescribed payments and became indebted to defendant in the sum of $2,405.

Upon affidavit setting forth plaintiff’s default, defendant procured the issuance of a writ of execution on June 21, 1954. After levy had been made by the sheriff on plaintiff’s property, plaintiff made a motion to quash the writ, based upon his affidavit reciting the circumstances of the parties’ agreement. Both parties in their affidavits referred to the agreement as “embodied in and made part of the judgment.” The court granted the motion, thereby holding that the parties’ agreement had not merged in the decree so as to be enforceable by execution.

We have concluded that the trial court’s order granting the motion must be reversed. The nature of the agreement, its attachment to the stipulation for judgment, the filing of both documents with the court, and the plain language of the stipulation and the judgment entered thereon make the conclusion inescapable that merger was intended, thereby substituting rights and duties under the decree for those under the agreement. (See Rest., Judgments, § 47, com. a; Flynn v. Flynn, 42 Cal.2d 55, 58 [265 P.2d 865]; Hough v.

Hough, 26 Cal.2d 605, 609-610 [160 P.2d 15] ; 1 Armstrong, California Family Law, pp. 810-811.) Since there is no evidence to the contrary, the trial court’s conclusion that merger was not intended is not binding on this court. (Fox v. Fox, 42 Cal.2d 49, 52 [265 P.2d 881]; Estate of Platt, 21 Cal.2d 343, 352 [131 P.2d 825].) It was held in the Flynn case that incorporation of a property settlement agreement into a decree by reference does not preclude a merger. (Flynn v.

Flynn, supra, p. 59.) When an agreement has been incorporated into a decree, it is as effectively a part thereof as if recited therein in haee verba. It is of no consequence here that the agreement was complete in itself, for it lost its identity in the decree.

It is now the decree that declares the rights and obligations of the parties, for it “ordered and adjudged . . . that the properties and property rights of [the parties] are adjusted, settled and distributed as per the . . . agreement . . . and which is hereby approved by the court and by this reference embodied in and made a part of this judgment.” Nor is the decree lacking in potency to support the execution process because the precise terms of plaintiff’s monetary obligations do not appear on its face.

Execution has been defined as “a process in an action to carry into effect the directions in a decree or judgment.” (Painter v. Berglund, 31 Cal.App.2d 63, 69 [87 P.2d 360].) It has been allowed in ■ enforcement of the provisions, of settlement agreements where compliance was ordered by the decree. (Di Corpo v. Di Corpo, 33 Cal.2d 195, 201 [200 P.2d 529]; Cochrane v. Cochrane, 57 Cal.App.2d 937, 938 [135 P.2d 714]; Shields v. Shields, 55 Cal.App.2d 579, 582 [130 P.2d 982].) While the decree should state with certainty the amount to be paid (28 Cal.Jur.2d, § 76, p. 710; Kittle v.

Lang, 107 Cal.App.2d 604, 612 [237 P.2d 673] ; Wallace v. Wallace, 111 Cal.App. 500, 506-507 [295 P. 1061] ; D’Arcy v.

D’Arcy, 89 Cal.App. 86, 92 [264 P. 497]), it is sufficient if the amount may be definitely ascertained by an inspection of the record. (49 C.J.S. § 76, pp. 198-199.) Thus, the amount for which a judgment was rendered may be aided by reference to the pleadings in the case or the verdict. (1 Freeman on Judgments, 5th ed., § 84, pp. 148-149.) Likewise here, the monthly payments owing.by plaintiff as adjudged by the decree may be ascertained from the parties’ agreement, which was attached to their stipulation for judgment and filed as part of the record.

Plaintiff unavailingly relies on eases involving the enforcement of support decrees by contempt proceedings, requiring therefor an express order to pay the money due. (E.g. Plummer v. Superior Court, 20 Cal.2d 158, 163 [124 P.2d 5] ; Miller v. Superior Court, 9 Cal.2d 733, 737-740 [72 P.2d 868].) Contempt proceedings are criminal in nature, and the prescribed procedural safeguards must b.e accorded the alleged contemner. (City of Culver City v.

Superior Court, 38 Cal.2d 535, 541 [241 P.2d 258].) The prime purpose of such proceedings is punishment for disobedience of a valid order directing performance of a specified act. Liability for such drastic .punishment “should not rest upon implication or conjecture’’.but rather upon an order expressing in “clear, specific and unequivocal” language the act required. .(Plummer v. Superior Court, supra, p. 164.) It was therefore said in the Flynn case that “greater certainty and clarity may be required to support [contempt] proceedings than are necessary to support other judgment remedies. . . .” (Flynn v.

Flynn, supra, 42 Cal.2d 55, 60.) Whenever it is intended that a property settlement agreement shall become' merged in the decree, it is undoubtedly the better practice to have the terms of the agreement set forth in haec verba in the decree or by way of exhibit attached thereto, and to have the court employ explicit language in the decree showing that the rights and obligations of the parties are adjudicated by the decree in accordance with the terms of the agreement.

And while “greater certainty and clarity” may well be required to support contempt proceedings, we 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 act should not be required.

The order appealed from is reversed. Gibson, C. J., Traynor, J., and Peters, J., pro tem, concurred. Assigned by Chairman of Judicial Council.