Sullivan v. Sullivan , 102 Idaho 737 ( 1981 )

BAKES, Chief Justice,

concurring specially:

I concur in the result reached by the majority, but for the reasons expressed in the special concurring opinion of Shepard, J., that the alimony provision in the integrated property settlement agreement which was not merged in the decree was not modifiable by the court under the doctrine laid down in Phillips v. Phillips, 93 Idaho 384, 462 P.2d 49 (1969). Merger depends not so much upon what the trial court may or may not order, but upon whether or not the parties intend that a judicial determination of their marital affairs be substituted for their previous contractual settlement. Where the record is clear, as it is here, that neither the parties nor the court intend the original settlement agreement to be supplanted by a judicial decree, then no merger has occurred, and the parties’ rights are to be determined by their marital contract.