TRAYNOR, J. On May 25, 1944, plaintiff Mary Dexter and her husband, defendant Raymond Dexter, executed an agreement providing for the division of their community property and the support and maintenance of plaintiff and the children of the marriage. The agreement recited that the parties were separated and had lived apart for some time, that the separation appeared to be permanent, and that “ The said parties desire to effect a division of their community property and to provide for the support and maintenance of [plaintiff] and said children by friendly agreement, instead of resorting to court for said purpose.” It then provided that certain enumerated property should be conveyed to and become the separate property of plaintiff. The next para[39]graphs provided that “ [Defendant] agrees to pay to [plaintiff] for her support and maintenance and the support of their adult daughter and minor son, the sum of one hundred fifty dollars ($150.00) per month. ... In addition thereto first party agrees to pay for the daughter’s Sorority dues and other expenses the sum of twenty-five ($25.00) per month, commencing June 1, 1944, and continuing thereafter so long as said daughter remains an undergraduate in college, and unmarried, but not to exceed (2) years from June 1,1944.
“When the minor son of the parties hereto leaves school and goes to work, or when and if he goes into the military forces of the United States, then the monthly payment of [plaintiff] shall be decreased to one hundred dollars. . . .
“In addition to the above amounts, [defendant] agrees, at his expense, to fix up the guest or maid’s house at the premises above described, and to repair the fence on said property.
“Upon the marriage of [plaintiff], all payments to her for her support and maintenance shall cease, but the payments for the minor son and daughter shall continue on the terms hereinabove provided. Upon the death of [plaintiff], all payments hereunder shall cease and [defendant] will assume any obligation for the support of said children.
“ (4) All money and property of the parties hereto, other than that agreed to be conveyed to [plaintiff], shall be conveyed to [defendant], and shall become the separate property of [defendant]. . . .
“(6) Other than as expressly provided for herein, the respective parties hereto do hereby release the other party hereto respectively from any and all right of support, care and maintenance, as the husband or wife, respectively, of the other party. It is the intention of the parties hereto to make a final settlement herein of all rights of support, care and maintenance, one against the other, and to release the other party respectively from all rights of such support, care and maintenance other than as herein provided. . . .
“(8) Neither party hereto waives any cause of action for divorce which he or she, respectively, has against the other party hereto.
“ In any action for divorce or maintenance hereafter brought by either party, [plaintiff] waives any right to alimony, temporary or permanent, other than such amount as is provided for hereinabove for her support.
“ [Defendant] assumes and agrees to pay all attorneys fees incurred by the parties hereto in the execution of this agree[40]ment and agrees to pay all court costs and reasonable counsel fees incurred by [plaintiff] in any action for divorce which she may file against [defendant.] ”
Shortly after this agreement was executed plaintiff filed an action for divorce on the ground of extreme cruelty. She attached the agreement to the complaint and prayed that it be approved, that defendant be directed to comply with it, and that alimony be awarded in accordance with its terms. Defendant defaulted and an interlocutory decree was entered. The decree approved the agreement, ordered defendant to comply with it, and provided that pursuant to its terms, “defendant is ordered to pay the plaintiff monthly the sum of $150.00 . . . commencing June 1, 1944; provided, however, that when the son Norman Greenaway Dexter, leaves school and goes to work, or when he goes into the military forces of the United States, the said monthly award shall be reduced to the sum of $100.00 per month.” The decree also expressly incorporated the provision with respect to the payment of $25 per month for the college expenses of the adult daughter of the parties. A final decree was entered approximately one year later. In 1952 plaintiff petitioned the court to increase the amount of the monthly payments to $800 on the ground of changed circumstances. The court entered its order refusing modification on the ground that it had no jurisdiction to modify the amount of the payments. Plaintiff appealed and secured an order for attorney fees and costs on appeal, and defendant appealed from the latter order.
Plaintiff contends that the payments ordered to be made pursuant to the agreement are alimony subject to modification by the court under section 139 of the Civil Code. Defendant, on the other hand, contends that they constitute an integral part of the property settlement agreement of the parties and are not, therefore, subject to modification.
A husband and wife may contract with respect to their property (Civ. Code, § 158), and if they are living separate and apart they may provide for the support and maintenance of either of them and their children. (Civ. Code, § 159.) Moreover, as between the husband and wife, if the provisions for support and maintenance have been made an integral or inseverable part of the -division of their property, and the court in a divorce action has approved the agreement, its provisions cannot thereafter be modified without the consent of both of the parties. (Tuttle v. Tuttle, 38 Cal. [412]d 419, 420-422 [240 P.2d 587]; Adams v. Adams, 29 Cal.2d 621, 625 [177 P.2d 265]; Puckett v. Puckett, 21 Cal.2d 833, 841-842 [136 P.2d 1] ; Ettlinger v. Ettlinger, 3 Cal.2d 172, 175-178 [44 P.2d 540]; Sasanoff v. Sasanoff, 120 Cal.App.2d 120, 127 [260 P.2d 840]; Hamilton v. Hamilton, 94 Cal. App.2d 293, 299 [210 P.2d 750]; Alexander v. Alexander, 88 Cal.App.2d 724, 726-727 [199 P.2d 348] ; Holloway v. Holloway, 79 Cal.App.2d 44, 46-47 [179 P.2d 22]; Kohl v. Kohl, 66 Cal.App.2d 535, 540-541 [152 P.2d 494]; Landres v. Rosasco, 62 Cal.App.2d 99, 105-106 [144 P.2d 20]; Rich v. Rich, 44 Cal.App.2d 526, 530 [112 P.2d 780].)
It is clear that the parties executed such an agreement in this case. They expressly stated that they intended finally to settle both the division of their property and their rights and duties with respect to support and maintenance, and each party waived “any and all right to support, care and maintenance” other “than as expressly provided for herein.” It would be contrary to the clearly expressed intention of the parties to hold that the provision for monthly payments constituted a separable agreement for the payment of alimony subject to the continuing jurisdiction of the court to modify.
Plaintiff contends, however, that since the monthly payments were to .terminate on her death or remarriage and were described as alimony in the prayer of her complaint, they should be so treated. She points out that if they were intended as a division of property it would have been more reasonable for the agreement to provide that they should continue until a given amount had been paid. These considerations would be morp persuasive if the issue presented was whether, on the one hand, the monthly payments were solely part of a division of the community property, or, on the other hand, solely alimony. When, as in this case, however, the parties have made the provision for support and maintenance an integral part of their property settlement agreement, the monthly payments will ordinarily have a dual character. To the extent that they are designed to discharge the obligation of support and maintenance they will ordinarily reflect the characteristics of that obligation and thus have the indicia of alimony. (See Puckett v. Puckett, 21 Cal.2d 833, 838 [136 P.2d 1] ; Ettlinger v. Ettlinger, 3 Cal.2d 172, 174 [44 P.2d 540]; Kohl v. Kohl, 66 Cal.App.2d 535, 537 [152 P.2d 494].) On the other hand, to the extent that they represent a division of the community property itself, or constitute an inseparable part of the consideration for the property settle[42]ment, they are not alimony, and accordingly cannot be modified without changing the terms of the property settlement agreement of the parties.
Plaintiff contends, however, that when the provision of the agreement for monthly payments was expressly incorporated into the interlocutory decree and defendant was ordered to perform it, it became merged in the decree, and that therefore, under the rule stated in Hough v. Hough, 26 Cal.2d 605 [160 P.2d 15], it was subject to modification pursuant to section 139 of the Civil Code. In the Hough ease, however, it had become res judicata that the payments there involved were alimony and not an integral part of a property settlement. Accordingly, the court was not called upon to review the correctness of that determination, and it held that an agreement for alimony that had been merged in a divorce decree could no longer be enforced in an independent action. In the present case, on the other hand, there has been no previous adjudication in modification proceedings that the monthly payments are alimony. Moreover, the interlocutory decree itself did not purport to determine the character of the payments. It merely ordered defendant to make them pursuant to the terms of the agreement and thus made clear that judgment remedies including contempt would be available for the enforcement of his obligations.
In the absence of an order lor the payment of alimony in the interlocutory decree, such as the order that had been found to be present in the Hough case (see, also, Werner v. Werner, 120 Cal.App.2d 248, 249-252 [260 P.2d 961]; Dunning v. Dunning, 114 Cal.App.2d 110,114 [249 P.2d 609] ; Pearmanv. Pearman, 104 Cal.App.2d 250, 253 [231 P.2d 101] ; Weedon v. Weedon, 92 Cal.App.2d 367, 369-370 [207 P.2d 78] ; Gosnell v. Well, 60 Cal.App.2d 1, 3-5 [139 P.2d 985]), or a reservation of jurisdiction to make such an order in the future, the court cannot, after the interlocutory decree has become final, add a provision for alimony or modify the amount of payments ordered pursuant to a property settlement agreement. Accordingly, if plaintiff was dissatisfied with her contract whereby she had made the support and maintenance provisions an integral part of the settlement of property rights and had tenable grounds for setting it aside, she should have attacked the agreement before the interlocutory decree was entered. She cannot, however, after having secured its approval by the court and having accepted the benefits thereof, now seek relief inconsistent with its terms. [43](.Patton v. Patton, 32 Cal.2d 520, 523-524 [196 P.2d 909] ; Adams v. Adams, 29 Cal.2d 621, 627-628 [177 P.2d 265].)
In support of her motion for an increase in the monthly-payments, plaintiff filed an uneontradieted affidavit stating that under their agreement the parties divided the community property equally. She contends that a provision waiving all support and maintenance except as is provided in a property settlement agreement is invalid unless it is given in exchange for a greater share of the community property than that to which the party would otherwise be entitled. Although it was that type of agreement that was present in the Adams case, the rationale of that decision applies equally to other types of integrated bargains. Thus if the wife agreed to accept less than her share of the community property in exchange for greater support and maintenance payments, it would be unjust to her subsequently to hold that the payments were alimony subject to reduction on motion of the husband. (See 1 Armstrong, California Family Law, p. 801.) Moreover, at the time a property settlement is made, the parties may be uncertain as to which of their property is community rather than separate, and they will ordinarily not know how the court in the divorce action will find the facts or how it would, in the absence of an acceptable agreement-, exercise its discretion in dividing the property and awarding alimony. The amicable adjustment of these doubtful questions with respect to the property and support and maintenance rights of the parties may alone supply sufficient consideration to support their entire agreement. (Bennett v. Bennett, 219 Cal. 153, 159 [25 P.2d 426].) Thus in the present case, the parties recited that they desired to settle their property and support and maintenance rights “by friendly agreement, instead of resorting to court for said purpose.” Moreover, since plaintiff secured her divorce on the ground of extreme cruelty, had the parties not settled their rights by agreement, the court could in its discretion have awarded plaintiff all of the community property and less alimony than she received under her agreement. In such case, however, the alimony would be subject to reduction in the event of changed circumstances. Plaintiff was entitled to agree instead to an equal division of the community property in exchange for support and maintenance payments that could not be reduced. Accordingly, the fact that the community property was divided equally has no bearing on the validity of the [44]provision of the agreement whereby both parties waived all rights to support and maintenance other than as provided therein. (Tuttle v. Tuttle, 38 Cal.2d 419, 420 [240 P.2d 587] ; Sasanoff v. Sasanoff, 120 Cal.App.2d 120, 127 [260 P.2d 840] ; see, also, Hamilton v. Hamilton, 94 Cal.App.2d 293, 299 [210 P.2d 750] ; Holloway v. Holloway, 79 Cal.App.2d 44, 45-46 [179 P.2d 22].)
Defendant contends that if the payments are not subject to modification, the court had no power to order him to pay plaintiff’s costs and attorney fees on appeal. The trial court had jurisdiction, however, to determine in this proceeding the character of the payments involved, and accordingly, the divorce action is still pending within the meaning of section 137.3 of the Civil Code. (Lerner v. Superior Court, 38 Cal.2d 676, 685 [242 P.2d 321] ; Wilson v. Wilson, 33 Cal.2d 107, 115 [199 P.2d 671].) Since plaintiff did not waive any right she might have to attorney fees and costs in her agreement and no abuse of discretion has been shown, the order awarding costs and attorney fees on appeal must be affirmed.
The orders are affirmed.
Gibson, C. J., Shenk, J., Edmonds, J., Schauer, J., and Spence, J., concurred.