Steorts v. Steorts

FOX, P. J. This is an appeal from an order modifying the interlocutory decree and final judgment by reducing the amount defendant is required to pay plaintiff for her support and maintenance from $250 to $175 per month.

In November 1958 plaintiff was granted an interlocutory decree of divorce which awarded the care and custody of the minor child to the plaintiff with reasonable rights of visitation to defendant, and directed, inter alia, that defendant make regular monthly payments for the support of said child and that “the defendant pay directly to plaintiff for her support and maintenance the sum of $250.00 each month, one-half on [157]the 7th day and one-half on the 22nd day of each and every month, commencing on the 7th day of December, 1958; said payments shall continue until the death of husband or on the death or remarriage of wife, or until such time as the wife shall have earned in her individual capacity $6000.00 per annum net prior to taxes for two consecutive years; ...”

Paragraph Y of the complaint reads: “In the event of a property settlement agreement being executed by and between the parties hereto, plaintiff asks that the same be approved by this court, incorporated in and made a part of any decree rendered by said court in this action.” The complaint was not amended to allege the making of any property settlement agreement. No reference is made in either the interlocutory decree or final judgment to any property settlement or agreement between the parties for the support and maintenance of the plaintiff and the minor child.1 We are informed, however, in plaintiff’s brief that a document entitled property settlement agreement and purportedly signed by the parties was received in evidence as an exhibit. It is not in the record before us.

On December 20, 1960, following a hearing on an order to show cause procured by defendant in which he was seeking a modification of the interlocutory decree by way of a reduction in the amount he was required to pay plaintiff for her support, and which was contested, inter alia, on the theory that the said decree represented an integrated property settlement agreement and was therefore not subject to modification, the court found that the decree “is a non-integrated agreement and subject to modification.” Modification, however, was then “denied on the merits.” No appeal was taken from this order.

In March 1961 defendant procured another order to show cause, supported by his affidavit by which he again sought a reduction in the amount of support that he was required to pay his former wife under the interlocutory and final decrees. He recited the provision quoted above from the interlocutory decree with respect to the monthly payments he was required to make to the plaintiff for her support and maintenance and also stated facts showing change of circumstances which he contended justified reduction in his monthly support payments to his former wife. After a hearing, the court, on April 7, 1961, entered an order, the material portion of which reads