Bainbridge v. Bainbridge

• Decision Date: 14 January 1954
• Docket Number: No. 7956,7956
• Citation: 75 Idaho 13,265 P.2d 662
• Parties: BAINBRIDGE v. BAINBRIDGE.
• Court: Idaho Supreme Court

Page 662

265 P.2d 662

75 Idaho 13

BAINBRIDGE v. BAINBRIDGE.

No. 7956.

Supreme Court of Idaho.

Jan. 14, 1954.

Everett B. Taylor, Sun Valley, Branch Bird and Cecil D. Hobdey, Gooding, for appellant.

Hawley & Marcus, Boise, for respondent.

THOMAS, Justice.

Constance V. Bainbridge, appellant, will hereinafter be referred to as the wife and Emerson M. Bainbridge, respondent, will hereinafter be referred to as the husband.

The trial court, upon application of the husband for modification of a drcree of divorce, made and entered an order modifying the decree to exclude all annual payments to the wife. From this order the wife appealed.

The husband, an English citizen, and the wife, a citizen of the United States, each of whom had been previously married were married to each other on December 12, 1938, at Harrison, New York. One child, a son born July 22, 1943, is the only issue of said marriage. At all times subsequent to said marriage and until the year 1947 they resided in London, England. In September, 1947, the parties hereto, together with their son, moved to Bermuda where they purchased a home and continued to live together as husband and wife until the month of October, 1948, at which time the wife left the husband and at no time thereafter did they live together.

In January, 1949, the parties, each being represented by counsel, entered into and executed a property settlement and separation agreement.

On April 15, 1949, the wife filed an action for divorce in the above-entitled district court. The husband filed his verified answer and the matter being submitted to the court, a divorce was granted to the wife.

In June, 1949, following the entry of the decree of divorce, and as contemplated by the parties, the wife took the child to London, England, where she established a residence and has lived there continuously since. In December of that year the wife married an English citizen to whom she was still married at the time the matter of the modification of the divorce decree was heard; however, at that time she was living separate and apart from her then husband by mutual agreement.

Following the entry of the decree of divorce and in the month of June, 1949, the husband married a widow who had adopted twin sons, 7 years of age, whom he thereafter also adopted. The husband, his present wife and the two children have at all times lived in Bermuda.

At the time of the marriage of the husband and wife, the husband was the beneficiary of the income of a trust fund established by his father in the principal sum of £250,000. At the time of their separation the husband had so-called free capital to the extent of £40,000, as well as a home in Bermuda for which he paid £25,000, two high-priced automobiles, and furniture and household goods of the reasonable worth of £3,000. At that time the annual gross income from the trust fund was £7,000 and from the free capital was £2, 000. The wife had neither separate property nor any income whatever. His net income from the trust estate after taxes, principally the income tax of England, was £3,500. Under the pertinent terms of the agreement the wife received £10,000, the furniture and household goods in London, furs, jewelry, and an automobile of the value of approximately $4,000. All other property remained the property of the husband.

Under the agreement the husband was obligated to pay to the wife for her support and maintenance and the support and education of their son the sum of $12,000 annually, in equal payments, commencing January 1, 1949, which under the terms of the agreement was deemed to be allocated as follows: $8,000 for the support and maintenance of the wife for life and $4,000 for the support, maintenance and education of their son until he had attained the age of 21 after which such sum should be paid directly to him for life. The principal of the trust fund goes to the son upon the death of the husband. It is further provided in the agreement that in the event of a divorce and remarriage of the wife the annual sum payable to her shall be reduced to $7,000 per year, but in no event shall a revision of the agreement reduce the obligation of the husband to the wife for the support of herself and child below the sum of $10,000 per year, being $4,000 for the child and $6,000 for the wife during her life time.

Article Sixteenth of the agreement provides as follows: 'No modification or waiver of any of the terms of this agreement shall be valid unless in writing and executed with the same formality as this agreement. * * *

Again, the agreement expressly provides in the event of a divorce obtained by either party the same would not in any wise affect any of the terms, covenants or conditions of the agreement and expressly provided in this respect:

'* * * this agreement being absolute, unconditional and irrevocable and both parties intending to be legally bound hereby. In the event that an action for absolute or limited divorce is instituted at any time hereafter by either party, the parties shall be bound by the terms hereof and this agreement shall merge in any decree or judgment that may be granted in such action. This agreement may be offered in evidence so far as the same may be permissible and the same shall be embodied and made part of any matrimonial judgment or decree in any action which either party may commence against the other party, but in any event this agreement shall continue in full force and effect and shall survive any such matrimonial judgment or decree.'

On the 25th day of June, 1951, the husband filed the petition for modification of the decree with respect to the annual payments to the wife in the sum of $7,000. Upon a hearing the court purportedly modified the decree upon asserted substantial and permanent changes of circumstances and conditions by the elimination of the annual payments to the wife, effective June 25, 1951, the date the application was filed.

Upon appeal the wife contends that the provisions of the agreement with reference to the annual payments to be made to her did not merge in and become an operating part of the decree but that the rights set forth with reference to the matter rested upon the contract and not the decree and hence the trial court is without authority or jurisdiction to modify such payments set forth in the agreement; that the husband has mistaken his remedy.

The wife further urges that the court erred in modifying the provisions for the annual payments to her for the reason that such payments were an integral part of a consideration for the property settlement agreement--become vested and did not constitute alimony or support money, subject to modification upon a change of conditions.

Finally, the wife asserts that even though such payments are a part of the decree and also represent support or alimony payments, there is no evidence of material, permanent and substantial changes in the circumstances and conditions of the parties since the rendition of the decree which warrants the trial court in modifying the decree even to the extent of reducing such payments to $6,000 (£1,492) a year.

If the first contention of the wife is correct it is decisive on this appeal and the other propositions will not be considered.

While this question has been before the courts in many jurisdictions, it is one of first impression in this state.

In the case before this court the complaint alleges that a property settlement had been entered into between the parties and that it would be submitted to the trial court; the prayer of the complaint asks that the property settlement be ratified, confirmed and approved and made a part of the decree the agreement was received in evidence as an exhibit; the decree, with respect to the agreement, contains the following:

'It Is Further Ordered, Adjudged and Decreed That the agreement between the parties made as of the 12th day of January, 1949, market Plaintiff's Exhibit 'A', on file in this Court, as modified by an agreement between the parties dated January 18, 1949, marked Plaintiff's Exhibit 'B', on file in this Court, providing for a property settlement between the parties and for payments by the defendant to the plaintiff for the maintenance and support of the latter, be approved and confirmed, and the parties are each hereby ordered and directed to comply with the provisions thereof.'

There is no further or other reference to the agreement in the decree nor does the decree in and of itself specifically or otherwise provide for any payments to be made by the husband to the wife at any time or at all.

An examination and study of cases in California discloses that particularly prior to the decision of Lazar v. Superior Court in and for City and County of San Francisco, 16 Cal.2d 617, 107 P.2d 249, the first expression by the Supreme Court of that state, there existed a marked degree of confusion and seeming inconsistencies as to just what constituted a sufficient incorporation of the agreement into the decree to result in the agreement being merged in and becoming a part of the decree itself.

In the case of Shogren v. Superior Court in and for City and County of San Francisco, 93 Cal.App.2d 356, 209 P.2d 108, 113, decided August 17, 1949, a thorough and painstaking review and analysis of all the earlier California cases was made. By way of summary, the court then concluded as follows:

'In spite of the confusion that exists in the authorities, the later decisions have fairly, although perhaps vaguely, crystallized the rule. A fair summation of the rule as it exists today is the following: (1) If a property settlement agreement is merely referred to in the divorce decree, or approved by the court but not actually made a part of the decree and the performance of any of its provisions ordered, then the provisions of the agreement cannot be enforced by contempt proceedings. (2) If the agreement or any of its provisions are actually incorporated in the decree...