Holloway v. Holloway

[45]

McCOMB, J.

This is an appeal from an order denying defendant’s application for a modification of the provisions of an interlocutory decree of divorce ordering him to pay $35 per week to plaintiff for her support and maintenance until her death or remarriage.

The undisputed facts are these:

Plaintiff and defendant were married on November 17,1927. On December 8, 1939, they entered into a property settlement agreement.

1

This agreement provided that the property of the parties should be divided as follows:

A. Plaintiff was to receive (1) a 1938 automobile, (2) the household furniture, and (3) one-half of the cash value of certain life insurance policies.

B. Defendant was to receive (1) a 1937 automobile and (2) the remaining one-half of the cash value of the insurance policies mentioned above.

C. Defendant was to pay all outstanding bills and keep the insurance policies hereinabove mentioned in force with plaintiff as beneficiary until January 6, 1941, on which date they were to be cashed.

D. Bach party agreed to relinquish all claims and all rights to any other property of whatsoever description or character which the other might acquire.

Plaintiff expressly agreed subject to the provisions of the agreement to waive any and all rights and claims for support and maintenance.

2

[46]

On December 21, 1939, plaintiff commenced an action for divorce. The property settlement agreement was attached to the complaint as an exhibit and was incorporated therein by reference. The prayer of the complaint asked the court to approve the agreement and order defendant to pay the sums as therein provided. Thereafter, the action was tried as a default and on January 18, 1940, an interlocutory decree of divorce was granted which approved the agreement, incorporated it