End Papers: Enforceable Spousal Support Termination Clauses

By: Ovvie Miller

Periodical: Los Angeles Daily Journal

Date: September 11, 1995

The 4th District California Court of Appeal has sent yet another judicial message to California lawyers on the subject of marital settlement agreements that purport to terminate spousal support at a certain date.  The message, "You just don't get it!" is the gist of the recent holding in In re Marriage of Brown, 35 Cal.App.4th 785 (1995).  Because Brown follows the decisions to the same effect, In re Marriage of Vomacka, 36 Cal.3d 459 (1984), and In re Marriage of Jones, 222 Cal.App.3d 505 (1990), one would think that practitioners would now have learned to use appropriate language to achieve a complete and final termination of spousal support when that is intended.  Evidently not.

In Brown, the couple, Linda and Richard, separated in May 1987 after 14 years of marriage.  In June 1988, the parties signed a marital settlement agreement prepared by Linda's attorney.  The agreement provided that Richard would pay Linda $2,000 monthly spousal support for a period of 60 months commencing after the sale of their residence and Linda's relocation to a new home.  The agreement (and the judgment filed November 1988 that incorporated its terms) stated as follows:

"'After the payment of the 60th installment of $2,000 after the sale of the subject residence, [Richard's] obligation to pay spousal support to [Linda] shall terminate forever and no court shall have any jurisdiction to extend the within award of spousal support either as to amount or duration after said date."'  Brown, 35 Cal.App.4th at 786.

In April 1993, before expiration of the 60-month period, Linda sought a modification to extend the duration of spousal support beyond that period.  The trial court denied the request as being beyond its jurisdiction.  Linda appealed and the Court of Appeal reversed.

The appellate court held that the parties' agreement did not explicitly bar a modification beyond the apparent termination date if a party acted before the expiration of the 60-month period.  The court made reference to the law's favored position of a policy where the court retains "fundamental jurisdiction" to modify or extend spousal support in a long marriage.  In the face of what it viewed as ambiguous language, that policy supported a decision permitting the extension of support beyond the 60-month period where the modification was brought before the period expired.

The court in a footnote said that the specific rule for interpreting marital settlement agreements in favor of the right to spousal support must prevail over the general rule of Civil Code Section 1654, which states that any uncertainty in contractual language is construed against the party who caused such uncertainty to exist.  (In Brown, Linda's attorney prepared the document.)

Most lawyers reading the language used in the Brown agreement would likely agree that the trial court made the right decision - that the parties had intended to effect a termination of spousal support in any and all events after the 60th monthly payment was made.  One can only imagine what Richard (and his lawyer's) reaction was upon reading the appellate decision.  Yet, in light of the earlier Vomacka and Jones decisions, should Brown have been a surprise?

In Jones, which also involved a lengthy marriage, the spousal support language provided for a step-down in payments over the course of several years:  "'The Husband agrees to pay the Wife for her support the sum of $1,000 per month for one year beginning on the 1st day of the month following the wife and children's occupancy of a house to be purchased in Phoenix, Ariz., followed by payments of $750 per month continuing through May 1983, followed by payments of $500 per month continuing until January 1, 1986, followed by payments of $250 per month continuing until Oct. 1, 1989.  The Husband agrees to pay $400 per month until commencement of the first $1,000 payment.  In addition, the Husband agrees to pay one lump sum payment of $1,000 in December 1987.  All payments will terminate on the death of either party, the remarriage of the recipient or on Oct. 1, 1989." Jones, 222 Cal.App.3d at 508.

The Court of Appeal affirmed the trial court's order increasing and extending spousal support indefinitely, pursuant to an application filed before the Oct. 1, 1989 termination date.  The court held that in the absence of a specific preclusion of jurisdiction to modify, the trial court correctly retained such jurisdiction.

In Vomacka, decided more than 10 years ago, the California Supreme Court stated that orders for absolute termination of spousal support on a specified date are disfavored, particularly in lengthy marriages.  It also indicated that where there is ambiguity in the language of a marital settlement agreement the right to spousal support prevails.  Further, it declared, language in an order permitting modification of any kind is to be interpreted as a retention of the court's "fundamental jurisdiction" to modify and extend the term of support on a proper showing.

The language of the agreement in Vomacka that prompted these views was as follows: "'[William] shall pay to [Joyce] as and for spousal support, the sum of $275 . . . commencing Sept. 1, 1979 to continue each month thereafter until further order from the court, the death of either party, the remarriage of [Joyce], or Aug. 1, 1982, whichever first occurs.  The court shall retain jurisdiction regarding spousal support until Sept. 1, 1984, at which time [Joyce's] right to request spousal support from [William] shall terminate forever."'  Vomacka, 36 Cal.3d at 461-462.

The Supreme Court, by a 5-2 margin, reversed a unanimous Court of Appeal and held that the trial court had jurisdiction to modify the judgment and extend spousal support beyond Sept. 1, 1984.  In light of these cases, how then should the lawyer who is drafting a provision which is intended to forever terminate support on a specific date or event proceed?  Here is suggested language that, while it must be modified to suit the particular facts, should be included in every support agreement:

"The parties have negotiated all issues relating to spousal support, including modifiability, amount, duration and whether it should be extendible.  Accordingly, notwithstanding anything to the contrary contained in this agreement or in any court order or judgment based upon this agreement, and irrespective of any change in economic or other circumstances affecting one or the other of the parties, the parties agree that upon the happening of the first of the terminating events described above (i.e., death of either party, remarriage of payee or July 1, 2005).  Payor's obligation to pay spousal support to Payee shall forever cease.

"The terminating events specified in this agreement are absolute. This agreement forever ends the right of Payee to request or receive spousal support beyond a terminating event, whether or not such request is made before or after the happening of such terminating event. In addition, the parties agree that no court shall have jurisdiction to extend or order any spousal support beyond any terminating event, whether or not such request is made before or after the happening of such terminating event.

"The parties have carefully considered that the absolute termination of spousal support as provided above may work a great hardship on one or the other of them, but they nonetheless agree that they wish to fix for all time certain specific terminating events and they expect and agree that there will be no remaining spousal support obligation of any kind or nature following the happening of any of the terminating events."

The attorney drafting a termination provision of this kind is telling the world, "When I say 'termination,' I mean it!"

Ovvie Miller, a partner in the Beverly Hills firm of Rosenfeld, Meyer & Susman, specializes in family law and handles occasional civil litigation.

Our Litigation Department specializes in civil litigation at all levels of the judiciary, and has wide-ranging experience in litigating business, commercial and entertainment-industry related matters. We have extensive experience in accounting and partnership, antitrust, and securities and corporate litigation. Additional areas of emphasis include copyright and intellectual property, real estate and products liability litigation as well as in the appellate practice.

Rosenfeld, Meyer & Susman was founded in 1957.  The Firm’s areas of expertise include: Labor and Employment Law, Litigation, Corporate, Entertainment, Trusts and Estates, Taxation, Family Law, Insurance Coverage and Defense, Real Estate and Employee Benefits.

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