Wolff v. Wolff

WARNE, J. pro tem.* This is an appeal from a judgment denying a motion to modify a divorce decree.

Under the terms of a property settlement agreement it was provided that the respondent pay to appellant $18,400 in the following manner: $13,600 forthwith and $4,800 in installments of $200 a month, commencing on December 1. 1953, the last payment to be made on November 1, 1955. The agreement further provided that each of the parties released and absolved and waived any and all rights to support, maintenance or alimony from the other, but provided in paragraph (7) as follows: “Except as hereinafter in this paragraph provided, each party promises and agrees to, and does hereby release, absolve and waive any and all rights to support, maintenance or alimony from the other; provided, however, that in the event Wife shall be suffering from carcinoma of any type whatsoever, affecting any part of her body at any time between the date of the execution of this agreement [October 27, 1953] and December 1, 1955, then in that event Wife shall be entitled to support, maintenance or alimony from Husband in such monthly amounts as the parties may agree upon at that time, and in the event the parties cannot reach an agreement regarding the amount of such support, maintenance or alimony, then the Superior Court in which said divorce action is now pending may hear and determine any question of fact as to whether Wife is at that time suffering from such carcinoma, the ability of Husband to pay support, maintenance or alimony, the amount reasonably required by Wife for her support and maintenance, medical and hospital care, and may thereupon make an order or judgment awarding Wife such a monthly allowance from Husband as may seem reasonable and proper to the Court, ...”

At the time of the hearing of the divorce action appellant [278]testified that she was waiving any claim to alimony or support, subject to the power of the court to reopen the case for the purpose of determining the amount of alimony that she should be awarded should she be suffering from carcinoma or cancer between the date of hearing and December 1, 1955, and that the reasons for the provision as to the reopening of the ease was because she had a history of carcinoma at one time and the doctors had advised her that it could not be ascertained if she was cured before a certain time. The court then asked her: “What is the provision ? Mr. Bonnihgton : The provisions are that should you be suffering from carcinoma from now to December 1st, 1955, then you may ask the Court for an award or support. The Court: Is that satisfactory to you, Mrs. Wolff? A. Yes. The Court: Very well. Now, you have had, of course, the benefit and advice of counsel, and Mr. Wolff has had the benefit of counsel during all of these proceedings, and you understand that by not asking for alimony, and in approving this agreement, and approving that provision, that otherwise you are not entitled to alimony ? A. Yes. The Court: And you wish it that way? A. Yes.” The trial court thereupon granted appellant an interlocutory decree of divorce, and approved the property settlement agreement with the proviso that it might be attached to the interlocutory decree for all purposes. By the final decree the court retained jurisdiction to make an award pursuant to paragraph (7) of the agreement.