Forgy v. Forgy

Opinion

COUGHLIN, J.

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William J. Forgy, the former husband of Bonnie Louise Forgy, appeals from an order, in their divorce action; denying his motion to modify a previous award of spousal support premised on a separation agreement.

The agreement was executed on March 7, 1969, and was incorporated in an interlocutory judgment of divorce entered on October 22, 1969. In substance the agreement provided, and the court, in effect,

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ordered the husband should pay his wife, monthly, as support and maintenance for herself, 33‘A percent of his gross pay from the Navy plus an additional amount we need not consider; and upon his retirement the payments would become 40 percent of the husband’s naval retirement pay plus an additional 10 percent of the husband’s adjusted gross income for United States governmental purposes excluding retirement pay. The husband retired after entry of the final decree, which incorporated the provisions of the interlocutory decree.

[770]

In response to the husband’s motion to modify, the court found the agreement was nonmodifiable and denied the motion on this ground.

At the time the agreement was executed and the interlocutory judgment was entered, former Civil Code section 139 (Stats. 1967, ch. 1308)

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provided in pertinent part: “The provisions of any agreement or order for the support of either party (to a divorce action) shall be subject to subsequent modification or revocation by court order ... except to the extent that any written agreement . . . specifically provides to the contrary.”

The issue at bench is whether the separation agreement, specifically provides the support provisions thereof are not subject to modification by court order.

The wife directs our attention to provisions of the agreement she contends, as a whole, specifically provide the spousal support provisions of the agreement are not modifiable by court order. Exemplary are statements (1) the parties desire to settle now and forever all questions relating to the maintenance and support of the parties as well as all rights to property; (2) the consideration for the agreement is the mutual covenants therein contained; (3) each party waives and releases to the other any and all claims which he or she might have or claim against the other except as expressly provided or referred to in the agreement; (4) the parties by mutual agreement may modify the terms of the agreement, provided no such modification shall be valid unless in writing and executed by both parties; and (5) “[i]n the event that either the Husband or the Wife shall hereafter obtain a decree of absolute or limited divorce, such decree shall incorporate the provisions of this Agreement to the extent acceptable to the Court, but such decree shall in no way affect this Agreement or any of the terms, covenants, or conditions thereof, it being understood that this Agreement is absolute, unconditional and irrevocable.”