Hodgson v. Hodgson

PULLEN, P. J.

Some time prior to the present controversy appellant and respondent were husband and wife. In 1929, and during their married life, they entered into a property settlement wherein it was provided, among other things, that appellant herein be granted the care and custody of their two minor children until they had attained the age of twenty-one years; ‘it was also provided that she was the owner, as her separate estate, of a particular parcel of real property upon which was due certain payments which the husband agreed to pay as they fell due. It was also agreed therein that respondent herein would pay to appellant the sum of $150 per month, of which sum $80 was for her support and $35 for the support of each of the two minor children, together with other conditions not here necessary for our consideration.

Shortly after entering into this agreement an action for divorce was commenced by appellant against' Robert W. Hodgson and upon his default an interlocutory decree was entered. In this decree “it is further ordered and adjudged that all of the terms of said contract dated January 10, 1929, a copy of which is herewith filed, with reference to the property therein described and the financial obligations therein assumed shall be binding upon plaintiff and defendant, the same as if specifically incorporated in this decree”.

Thereafter a final decree of divorce was entered and the terms of the interlocutory decree incorporated therein by reference. Some two or three years later, the defendant moved for a modification of the interlocutory and final decrees in so far as the same made provision for alimony and the support of the minor children. The application was resisted but an order was made modifying the decrees and reducing the amount for support of plaintiff and her children from $150 per month to $135 per month.

An appeal was taken from that order, and the question as framed by respondent here is, “Has the Superior Court jurisdiction to modify an interlocutory and final decree of divorce insofar as the same make provision for

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alimony and support of minor children, the final decree approving the provisions of the interlocutory decree, the latter referring to a property settlement entered into between the husband and wife and approving the same, such contract not being attached to the decree nor set out