Can a Spouse Waive Alimony In California ?
There are only two California cases discussing the concept of "waiver" of a right to support established by a final judgment.
In Graham v. Graham (1959) 174 Cal. App. 2d 678 345 P.2d 316, a 1947 divorce decree required the husband to pay $ 50 per month in alimony and $ 80 per month in child support. (Id. at p. 680.)
In 1958, the husband filed a motion seeking to reduce his support obligation to $ 50 per month.
The wife objected to the entertainment of the husband's motion on the ground that he had never fully complied with the original support order and was, thus, in contempt of court and not entitled to be heard.
In an affidavit, the husband responded to the wife's contempt argument by asserting that, within days of entry of the divorce decree, the parties had entered into an oral agreement under which the wife was to be paid a combined support payment of $ 25 per week, and that the husband thereafter had regularly paid such sums to the wife. (Id. at p. 681.)
At the hearing on the motion, the husband testified as follows: "Well, I just told her at that time I just couldn't pay $ 130 a month, so we talked it over and I said, "I'll pay you $ 25 a week," and that is the agreement I came to and I have been paying it ever since." (Id. at p. 682.)
The wife admitted she had never taken any legal steps to enforce the 1947 support order, but denied that she had agreed to this reduction.
As the Graham court noted, moreover, nothing in the husband's testimony showed that the wife actually agreed to accept $ 25 a week in full payment of the court-ordered amount. (Id. at pp. 681, 682.)
Nevertheless, the trial court found on the conflicting evidence, and inferences arising therefrom, that the husband was not in arrears because the wife had "waived" all sums in excess of $ 25 per week. (Id. at p. 683.)
The trial court then proceeded to grant the husband's motion, in part, reducing his child support obligation to $ 15 per week. (Id. at p. 681.)
The wife appealed the modification order, contending that an order of support cannot as a matter of law be modified by an executed oral agreement or as to past due installments. (Graham v. Graham, supra, 174 Cal. App. 2d at p. 683.)
The Court of Appeal affirmed, holding as follows: "Although no case has been found expressly holding that one may waive the benefit of an award for alimony and child support, the law is well settled that one may waive any civil right, and that 'any one may waive the advantage of a law intended solely for his benefit.'
A wife may waive her right to alimony pendente lite, and her right to avoid a transfer of community real property executed solely by her husband.
There appears to be no valid reason why a woman cannot also waive her right to a portion of the alimony and child support provided for by a decree of divorce so as to relieve her former husband of a charge of contempt based upon a wilful disobedience of said order.
The mandate is clear that a court may not modify an award as to accrued installments (former Civ. Code, 139), but that is not the situation here.
And the question here is not whether the parties themselves modified the court order but rather whether or not a waiver was effected by an agreement between the wife and the husband. . . . . Although here the evidence of a waiver by express agreement certainly is equivocal, yet when the testimony is considered in connection with the conduct of the plaintiff in failing to take any steps to enforce payment in accordance with terms of the decree for over 10 years, we cannot say as a matter of law that the conclusion drawn by the trial court was not justified.
We therefore hold that the finding that husband was not in arrears and therefore not in contempt and entitled to be heard finds adequate support both in the facts and in the law." (Graham, supra, 174 Cal. App. 2d at pp. 683-684.)
The Graham court did not explain how the right to receive child support may be deemed an " 'advantage of a law intended solely for his or her benefit,' " such that a parent may validly waive that right. (Graham v. Graham, supra, 174 Cal. App. 2d at pp. 683-684.)
On the contrary, even in 1959, we would have thought it well settled that child support is owed to the child, not to the spouse identified in the support order as the recipient of child support payments. (See Jackson v. Jackson (1975) 51 Cal. App. 3d 363, 367 124 Cal. Rptr. 101, and cases cited therein; see also Evans v. Evans (1908) 154 Cal. 644, 645-646 98 P. 1044 a mother may not forfeit her children's right to support from their father.)
This analytical flaw in the reasoning of the Graham court may explain why no other published case has upheld a finding of post-judgment "waiver" of child support, much less invoked Graham to bar enforcement of a final judgment containing an order for payment of child support, and may well relegate Graham to the status of "sport."