Lish v. Lish

HERNDON, J. This is an appeal from an order dismissing an order to show cause wherein appellant wife sought a modification of the provisions of the interlocutory and final decrees of divorce relating to alimony and attorney’s fees. The order dismissing the order to show cause was made with[344]out the taking of any testimony, the trial court holding that the provisions of the decrees were not subject to modification as a matter of law because the property settlement agreement incorporated into the divorce decrees was fully integrated. Appellant concedes that the property settlement agreement has been merged into the decrees by virtue of the language thereof.

The issues presented by the parties are: (1) whether the alimony and property settlement provisions of the instant agreement were integrated, and (2) whether the terms of the agreement are such as to indicate the intent of the parties that the alimony provisions remained subject to modification.

The resolution of these questions calls for an examination and analysis of the agreement here involved. It is recited that ‘ ‘ [t] he parties hereto desire, by this agreement, to settle and adjust, as between themselves, their respective property rights, and to provide for the future support of wife.” The community property is enumerated and described and provision is made for its division between the parties. Paragraph 9 reads as follows:

“9. Support op Wipe: Subject to the orders of <my court of competent jurisdiction and not as a part of the division of the community property, Husband agrees to pay to wife, for her support and maintenance the following sums, payable one-half on the 1st and one-half on the 15th day of each month, commencing on the 1st day of Aug., 1957.

“a. Until the residence of the parties described in paragraph 5a above has been sold, the husband will grant exclusive possession to the Wife and will pay to the Wife the sum of $550.00 per month. Out of this sum, the Wife will make all payments due or to become due to the beneficiaries under the various deeds of trust on said residence. Wife is also to pay the costs of upkeep on said house except that taxes, if any, and repairs in excess of $25.00 shall be borne equally between the parties.

“b. After the sale and conveyance of the above described residence Husband will pay to the Wife the sum of $325.00 per month, except when the income from employment by the Wife shall exceed $75.00 in any calendar month. In the event that the Wife’s income from employment shall exceed $75.00 in any given month, then the Husband shall pay to the Wife the sum of $250.00 in the month next preceding the month when the Wife shall have earned and received the above amount. The Wife shall report to the husband on the