# Messenger v. Messenger > California Supreme Court · June 6, 1956 · 46 Cal. 2d 619 URL: https://www.frixlaw.com/law-library/cases/9536686 ## Case - **Full name:** BERTHA J. MESSENGER, Appellant, v. THOMAS T. MESSENGER, Respondent - **Court:** California Supreme Court - **Decided:** June 6, 1956 - **Citations:** 46 Cal. 2d 619; 297 P.2d 988; 1956 Cal. LEXIS 217 - **Precedential status:** Published - **Opinion:** Dissent by Shenk - **Judges:** Traynor, Carter, Shenk, Schauer - **Cited by:** 62 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9536686 ## Opinion text SHENK, J., Dissenting.—I am unable to agree with that portion of the opinion which holds that the alimony payments to the wife were integrated in the property settlement agreement and were therefore not subject to modification as provided in section 139 of the Civil Code. A property settlement agreement should be construed as any other agreement. Here the parties were dealing at arm’s *635 length and were represented by counsel in the preparation of the agreement. They are presumed to mean what they said in that instrument and the words they have used are to be taken in their ordinary and legal meaning. Here both meanings are the same. The problem in each case is to ascertain the intention of the parties by the language they have used. The parties set about to settle a “permanent and lasting” division of their “property rights” whether “separate or community.” Permanent alimony payments do not fall within either category and as a general rule must be dealt with subject to the power of the court to modify them in accordance with the provisions of section 139 of the Civil Code. Where in the agreement there is a clear intention to waive them or to integrate and settle them as part and parcel of all marital and property rights, the right of the parties to so contract is recognized. Here, as properly found by the court, there was no such intention. The parties repeatedly and with obvious design used the word “alimony” in their agreement. That word ordinarily means an allowance made to the wife by her husband for her support after a dissolution of their marriage by divorce. It is used frequently in our statutes as incorporated in our official codes. For example, it is specifically employed in sections 137, 140 and 142 of the Civil Code. In our decisional law it has been used repeatedly in its ordinary sense. It must be assumed that it was used in its ordinary sense throughout this proceeding. It was first used by the parties in their agreement, which provides that the defendant shall pay to the plaintiff $500 per month as “alimony” for her “support and maintenance” and provides that these payments shall continue “until the wife dies or remarries.” Then in her complaint for divorce the wife asked for an award of “alimony” in this same sum. She prayed that the property settlement agreement be approved and made a part of the decree and that the court order the defendant to pay her $500 per month for her care, maintenance and support “as therein agreed.” The interlocutory decree approved the property settlement agreement and incorporated it by reference in the judgment and ordered that the defendant pay to the plaintiff $500 per month for her “care, maintenance and support ... as agreed in said property settlement agreement . . . until the plaintiff dies or remarries. ...” The word “support” as used in section 139 of the Civil Code of course means alimony. The final decree of divorce specifically states that “wherein *636 said interlocutory decree makes any provision for alimony . . . [it] is hereby made binding on the parties affected thereby as if herein set forth in full.” Those decrees have long since become final. The use by the parties and by the court of the descriptive and meaningful term and phrases “alimony,” “care, maintenance and support” and “until the plaintiff dies or remarries” should.not be disregarded and should be determinative in support of the findings and conclusions of the trial court in the present proceeding. But this court now says, as a matter of law, that the parties did not mean what they said when they used the word “alimony” in their agreement, and that the trial court did not mean what it said in its divorce decrees, and that the findings and conclusions in the present proceeding are without support in the record. If the agreement was without ambiguity, as both parties contend, the trial court had the power in the first instance to declare from its language alone the intention of the parties, and its determination should not be set aside unless it is unreasonable. A construction of the agreement on that theory alone is reasonable. However, each party contends that the agreement is unambiguous in his or her favor, and this is one test of ambiguity. The fact that the parties themselves each ascribe different meanings to the words used indicates the existence of an ambiguity. (Chastain v. Belmont, 43 Cal.2d 45, 51 [ 271 P.2d 498 ]; California Emp. Stab. Com. v. Walters, 62 Cal.App.2d 554, 559 [ 149 P.2d 17 ].) Notwithstanding her contention that the agreement is unambiguous in her favor the plaintiff at the hearing of the present proceeding requested the court to take extrinsic evidence to ascertain the intention of the contracting parties as to the alimony payments. In so doing she was met by the construction of the agreement in the prior divorce proceedings to the unmistakable effect that alimony was not integrated in the agreement. However in compliance with her request the trial court took extrinsic evidence. This it had the right to do in aid of the interpretation of the agreement when ambiguity is present or questionable. (Tuttle v. Tuttle, 38 Cal.2d 419, 421 [ 240 P.2d 587 ]; Flynn v. Flynn, 42 Cal.2d 55, 60 [ 265 P.2d 865 ]; Fox v. Fox, 42 Cal.2d 49, 52 [ 265 P.2d 881 ].) Having before it the terms of the agreement, the divorce decrees and the extrinsic evidence, the trial court found and *637 concluded that alimony as such was not intended to be integrated in the agreement and was not affected by the provision therein waiving “all right to future maintenance and support . . . except as herein otherwise provided.” The exception could have reference only to the alimony which is “otherwise provided.” In my opinion the record fully supports the findings and the conclusion of the trial court that the alimony payments were modifiable. I would affirm the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9536686. Public record. Not legal advice.