Fox v. Fox ( 1954 )

CARTER, J., Concurring and Dissenting.

I concur in the judgment reversing the order, but I disagree with some of the reasoning leading thereto.

In this case the parties had agreed that certain payments were to be made to the plaintiff; the portion of this agreement referring to said payments was incorporated in the decree of divorce. Upon application for modification, plaintiff wife was granted an increase in the monthly payments as well as additional attorneys’ fees. Plaintiff contended that there was evidence to sustain the trial court’s implied finding that the payments were intended solely as alimony subject to modification. This court, in the majority opinion, says: “In the absence of conflicting extrinsic evidence, the interpretation placed upon the agreement by the trial court is not binding on this court on appeal. ’ ’ In effect, the majority is saying that there was insufficient evidence to support the trial court’s implied finding that the payments were alimony and not a part of a property settlement agreement. This result flows naturally from its determination that the payments were part of a property settlement agreement.

This case, as well as the Dexter and Flynn eases, has run the full judicial gamut provided for in this state. This unnecessary and costly procedure could bé avoided in the future if the rule were settled that where parties have agreed upon a division of their property, or for support and maintenance for one of them, and that agreement is found by the court in the divorce action to be fair and equitable, and approved by it, their agreement is considered as the sum of their rights and liabilities and is not subject to modification in the absence of a provision in the agreement to that effect. This is as it should be and would provide the necessary measure of stability in such cases. I have, in my dissents in the Flynn and Dexter eases, set forth the reasons for such a rule and the necessity for it in that parties, and their attorneys, should be able to rely upon the proposition that property and support rights arising out of the termination of a marital relationship once settled by agreement should remain settled and courts should not be called upon to decide whether the payments provided for are alimony or a part of a property settlement. As I said in my dissent in the Dexter case, when the parties have settled their property and support rights and liabilities by agreement which has been approved by the trial court as fair and equitable, the question as to the character of any payments to be made should be forever closed to inquiry. Whether or not the provisions of the agreement are incorporated in the decrees of divorce should only affect the remedy to be pursued in the event of a failure to comply therewith.

Because the parties hereto agreed for specific payments to be made and received and because plaintiff waived all rights to any other attorneys’ fees than those set forth in the agreement, I would reverse the order appealed from.