Armstrong v. Armstrong

NOURSE, P. J.

This appeal involves the simple issue whether an award of alimony made in harmony with a property settlement agreement may be modified upon a proper showing.

The complaint pleaded an action for divorce upon the ground of the husband’s desertion. It alleged that, for the purpose of settling their property fights, and for making provisions for the support of their minor child, the parties had entered into a written agreement. This agreement was attached as an exhibit and incorporated in the complaint. The defendant permitted his default to be entered. The trial court found the allegations of the complaint to be true and entered an interlocutory decree awarding plaintiff alimony in the sum of fifty dollars a month until she may remarry and directing defendant to pay plaintiff fifty dollars a month for the support of their minor child. The

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final decree confirmed these awards. The property agreement was not incorporated in either decree and was not referred to in either. Thereafter the defendant moved to modify the decree in so far as it related to the payment of alimony and support of the minor child. This motion was granted as to both items and the plaintiff has appealed upon a bill of exceptions.

The order must be affirmed for the following reasons:

The power of the court to modify decrees of this character is statutory (see. 139, Civ. Code) and cannot be controlled by the parties

(Johnson

v.

Johnson,

104 Cal. App. 283, 287 [285 Pac. 902]); if, by the terms of the property agreement, the rights of the parties are contractual, that is a matter which can be determined only in an action based upon the contract

(Hughes

v.

Hughes,

68 Cal. App. 195, 197 [228 Pac. 675]); as it does not appear from the face of either decree that the property settlement was adopted by the trial court the statutory power of the court to modify cannot be denied