Warren v. Warren

DORAN, J. On October 17, 1945, appellant wife and respondent husband entered into a property settlement agreement which provided that “The husband shall pay to the wife for her support and maintenance $150 a month . . . during her lifetime or until she remarries, or until the death of the husband, provided however that subsequent to September 1, 1955, such payments may be modified by the proper court, upon showing of sufficient cause.” The agreement further obligated the husband to pay $100 for the support and maintenance of the minor child.

It was also agreed that “The husband shall pay to the wife the sum of $1,000.00 in cash, the same to be forthwith [635]deposited in escrow for payments in accordance with escrow instructions approved concurrently herewith”; and that “The husband does hereby sell, assign, transfer and convey to the wife as her separate property,” a certain vacant lot therein described, and “the residence real property”; also “The 1940 Ford Sedan Automobile and the 1935 Dodge Coupé Automobile,” and “All household furniture and furnishings . . . except the husband’s personal effects, his clothing, his books, his fishing tackle, and his shot gun.” The husband also agreed to pay $500 to the wife’s attorney.

In paragraph VII of the agreement “Bach of the parties in consideration of the agreements of the other herein expressed hereby waives, releases and relinquishes to the other all claims each now may have, or might hereafter otherwise acquire against the other, as husband or wife, or otherwise, arising out of the marital relation.” And again in paragraph VIII each party releases, relinquishes and waives “all claims he or she may now have, or hereafter may acquire against the other for support and maintenance, or otherwise, and ... all rights to administer upon the estate of the other, and . . . any right or claim for family allowance, homestead, support or maintenance, or otherwise . . . and agrees not to claim any interest in the other’s property.” The agreement is signed and acknowledged by both parties and is also signed by their respective attorneys.

An interlocutory judgment of divorce in favor of the wife was entered on February 18, 1946; the husband, represented by an attorney, having consented that the cause be heard as a default. This judgment recites that “a property settlement agreement between the parties hereto presented to the court for approval, which said agreement is in the following words and figures, to-wit,” thereafter setting out in haec verba the agreement hereinbefore referred to. “Pursuant to the terms of the property settlement agreement above set forth, which is hereby approved and made a part of this decree in all its terms, provisions and conditions,” the judgment orders the husband to make the payment of $150 per month to the wife as specified, with the proviso contained in the agreement, “that subsequent to September 1, 1955, such payments may be modified by the proper court upon the showing of sufficient cause.”