APPEAL from an order of the Superior Court of Los Angeles County awarding alimony pendente lite, attorney's fees and costs. William R. McKay, Judge.
Fox, J. Moore, P. J., concurred. McComb, J.
Defendant appeals from an order awarding his wife $1,000 per month alimony pendente lite, $2,500 attorney's fees, and $200 costs.
The parties married September 6, 1945. They are the parents of two children, ages two years, and eight months, respectively. It was plaintiff's third marriage; prior thereto she had been employed either as a model or as a motion picture actress; she had no issue by her previous marriages.
In July, 1948, the parties separated and plaintiff filed an action for divorce. On July 26th they executed a property settlement agreement. Soon thereafter they effected a reconciliation and lived together until their current separation on September 5, 1951. The two children were born subsequent to the reconciliation.
The property settlement agreement was received in evidence at the hearing on the order to show cause. Its stated purpose was to "finally and forever" settle their respective property rights. Paragraph one recites that the parties have no community property or community property rights by virtue of their marriage. By paragraph two the husband agrees to pay the wife upon the execution of the agreement $25,000, payment of which she acknowledges receipt. In paragraph nine it is agreed that in the event the wife hereafter sues the husband for divorce this contract "shall in all respects limit the quantum and nature of the relief granted" her. The agreement further provides that the wife will immediately dismiss her divorce action, which she did, and in the event she should thereafter obtain a decree of divorce the husband agrees to pay her $2,750. Finally it is provided each party releases the other from all claims for attorney's fees and expense money in connection with any action for divorce which may "hereafter" be commenced, and each "specifically waives the right to support or maintenance, alimony or right of family support by reason of the marital relations now existing between them, . . . or which may hereafter exist between them." (Italics added.) Although the agreement provides it may be presented to the court for approval in the event of a divorce, this has never been done.
Trust funds have been established for the benefit of the children. At the hearing on the order to show cause defendant was required to pay $600 monthly for the support of the children. He does not object to this order.
Defendant challenges the order for temporary alimony, attorney's fees and costs upon two grounds: (1) the July, 1948, contract is a bar to the making of any award; and (2) in any event, plaintiff failed to prove such necessity on her part as would justify the order.
When a divorce action is pending the court may, in its discretion, require the husband to pay such amount as may be reasonably necessary to enable the wife to support herself and her children and to prosecute her action. (Civ. Code, § 137.)*fn*
Property settlement agreements are sanctioned by the Civil Code (§§ 158 and 159) and occupy a favored position in the law of this state. (Hill v. Hill, 23 Cal. 2d 82, 89 [142 P.2d 417].) So when a wife has entered into a property settlement agreement waiving "all claims whatsoever" for support or attorney's fees and such contract has been judicially determined to be valid and binding the court may not thereafter, in another action, make an award of alimony pendente lite and suit money contrary to the provisions of such agreement. (Patton v. Patton, 32 Cal. 2d 520 [196 P.2d 909].) If, however, such property settlement agreement has not had judicial approval and is attacked as being void or as having been obtained through fraud, the court may make an award for necessary temporary support, counsel fees and costs. (Steinmetz v. Steinmetz, 67 Cal. App. 195 [227 P. 713]; Locke Paddon v. Locke Paddon, 194 Cal. 73 [227 P. 715].)
When the order to show cause came on for hearing on September 21, 1951, the case was not at final issue on the pleadings. In her complaint plaintiff not only asked for a divorce but also for a determination of the community property. Also, she asked that an equitable share thereof be awarded to her, and that she be granted both temporary and permanent alimony, support for the children, attorney's fees and court costs. The latter relief cannot be granted if the contract of July, 1948, is valid and enforceable. However, a serious question as to the legality of the quoted waiver provision in the contract on grounds of public policy is apparent. See Civ. Code § 159; Pereira v. Pereira, 156 Cal. 1 [103 P. 488, 134 Am.St.Rep. 107, 23 L.R.A.N.S. 880]; Barham v. Barham, 33 Cal. 2d 416 [202 P.2d 289]; Restatement of Contracts, § 587.) The subsequent reconciliation, resumption of marital relations and birth of two children were facts that have an important bearing on the effect of the contract. (See Mundt v. Connecticut Gen. Life Ins. Co., 35 Cal. App. 2d 416, 418 [95 P.2d 966]; Lloyd Corp. Ltd. v. Industrial Acc. Com., 61 Cal. App. 2d 275, 279-280 [142 P.2d 754].) Interrogation of both plaintiff and defendant by the latter's counsel clearly indicated defendant would rely on the contract as a defense to any of plaintiff's financial demands upon him. When the contract was presented at the beginning of the hearing, counsel for plaintiff stated to the court he was not prepared at that time to litigate "the question of the validity of this agreement." It was
thus clear that the validity and effect of the contract would have to be litigated and determined. That such was a correct analysis of the situation is demonstrated by the fact that the pleadings which have been brought up on this appeal show that defendant relies on the contract and plaintiff attacks it on six grounds. Thus, since it is necessary to determine the validity and effect of the property settlement agreement in order to adjudicate the rights of the parties, the court properly deferred its ruling on these questions until the case be tried on its merits. The agreement, therefore, is not a bar to an award for temporary support, counsel fees and costs. (Steinmetz v. Steinmetz, supra ; Locke Paddon v. Locke Paddon, supra.)
Patton v. Patton, supra, on which defendant strongly relies, is not applicable here because the property settlement agreements there had been held valid and binding. The court in the Patton case, in discussing and distinguishing the Steinmetz and Locke Paddon cases, points out that in those cases (as here) the property settlement agreements were under attack. Although in the Patton case there was a reconciliation after the first agreement was made (as here), it is significant that the parties ...