Gillespie v. Gillespie

Decision Date31 March 1952
Docket NumberNo. 5439,5439
Citation242 P.2d 837,74 Ariz. 1
PartiesGILLESPIE v. GILLESPIE.
CourtArizona Supreme Court

Jennings, Strouss, Salmon & Trask; J. A. Riggins, Jr., and Charles L. Strouss, Jr., all of Phoenix, for appellant.

Alice M. Birdsall, of Phoenix, for appellee.

DE CONCINI, Justice.

This is an appeal from an order granting appellee's motion to dismiss appellant's petition for modification of a divorce decree.

Appellant husband, hereinafter referred to as plaintiff, filed a complaint for divorce against defendant wife, appellee herein, on January 25, 1947. On February 27, 1947 the parties entered into an agreement settling their property rights and alimony to the wife, subject to the approval of the court. The important provisions of the agreement are as follows:

Section 2.

'That each of said parties shall have the right to bequeath by will his or her respective interests in and to any and all property belonging to him or her from and after the date hereof, and that said right shall extend to all of the aforesaid future acquisitions of property as well as to all property set over to either of the parties hereto under this agreement.'

Section 4.

'The Husband hereby quit-claims and sets over unto the Wife, as her sole and separate property the following: * * *' (Descriptions omitted).

Section 5.

'The husband shall pay unto the Wife for her support and maintenance the sum of Two Hundred ($200.00) Dollars per month, commencing with the month of March, 1947, until such time as the Wife shall remarry, said payments to be mailed to the Wife in care of the Wife's mother, Mrs. J. T. Jurisch, 1008 Third Avenue, Eau Claire, Wisconsin.'

Section 6.

'The Wife has executed and delivered unto the Husband a quit claim deed conveying unto the Husband all right, title and interest of the Wife in, of and to the following described community property: * * *' (Descriptions omitted.)

'That in lieu of the Wife's equity in said premises, the Husband shall cause to be paid to the Wife the cash sum of Five Hundred ($500.00) Dollars, payable forthwith.'

Section 7.

'The Wife hereby expressly disclaims unto the Husband and declares that the property hereinafter described is the sole and separate property of the Husband, to-wit: * * *' (Descriptions omitted.)

Section 8.

'Should a divorce be granted, an executed copy shall be presented to the court for approval or for the incorporation of the provisions herein contained into and as a part of the decree of divorce.'

Section 9.

'Each party to this agreement hereby solemnly and specifically avers that the foregoing agreement has been entered into without undue influence, fraud, coercion or misrepresentation of any kind.'

On March 7, 1947 a hearing was had in the trial court. Both parties were represented by counsel but were not personally present. Plaintiff's evidence consisted of his deposition, one corroborating witness, and the settlement agreement above referred to. The trial judge ordered that a decree of divorce be granted to the plaintiff and further ordered as follows:

'It is further ordered that the settlement of property rights of the parties as contained in Agreement admitted in evidence be confirmed and approved and that in accordance with provisions of said agreement plaintiff is ordered to pay to the defendant for her support and maintenance the sum of Two Hundred ($200.00) Dollars per month, commencing with the month of March, 1947, and thereafter payable on the first day of each and every month until and unless defendant shall remarry; it being specifically agreed that said payments shall cease and terminate upon remarriage of defendant.'

On the same date the trial judge signed a divorce decree, the pertinent provisions of which are as follows:

'It is Further Ordered, Adjudged and Decreed that the agreement introduced into evidence as plaintiff's Exhibit 'A,' defining the property rights of the parties and providing for the support and maintenance of the defendant be, and the same is hereby approved.'

'It is Further Ordered, Adjudged and Decreed that in accordance with the provisions of said agreement, the defendant is awarded and the plaintiff is ordered to pay to defendant as alimony for her support and maintenance the sum of Two Hundred ($200.00) Dollars per month, commencing with the month of March 1947, One Hundred ($100.00) Dollars thereof having been heretofore paid by plaintiff to defendant, the other One Hundred ($100.00) Dollars thereof for March, 1947, to be paid on March 15, 1947, the sum of Two Hundred ($200.00) Dollars on April 1, 1947, and the sum of Two Hundred ($200.00) Dollars on the first day of each and every month thereafter until the defendant shall remarry; * * *.' (Emphasis ours.)

In March 1950 plaintiff petitioned the superior court to modify this monthly payment of two hundred dollars by reducing same. Defendant made a motion to dismiss the petition which was granted, and the court gave as its reason for not entertaining the motion the fact that the parties had entered into a contract for the above named amount and it was not within the province of the superior court to change that contract.

Plaintiff's assignment of error raises but one question, to wit: Is the agreement in question, which was entered into by both parties and incorporated into the divorce decree, subject to modification?

From 27 C.J.S, Divorce, § 301, page 1157 et seq., we quote the following pertinent paragraphs:

'A divorce court has jurisdiction to approve valid property agreements made between spouses pending or prior to divorce proceedings'. Miller v. Miller, 33 N.Mex. 132, 262 P. 1007.

Quoting further from 27 C.J.S, Divorce, § 301, supra, page 1159:

'The mere approval of a property settlement in the divorce decree does not operate to make it a part of, and enforceable as, a decree of the court (Kastner v. Kastner, 90 Colo. 280, 9 P.2d 290); but if the language of the agreement shows an intent to make it part of the divorce decree, and the agreement is actually incorporated in the decree, the provisions of the agreement may be enforced as an order of the court. ' (Emphasis ours.) Lazar v. Superior Court, 16 Cal.2d 617, 107 P.2d 249.

Reading section 8 supra of the ageement together with the divorce decree supra it is clear that it was the intention of the parties that it should become a part of the decree, and that the court made it part of the decree by reference thereto. Therefore it is enforceable, not as an agreement, but as a decree of the court and subject to modification.

In Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15, the California Supreme Court quotes Holloway v. Holloway, 130 Ohio St. 214, 198 N.E. 579, 154 A.L.R. 439, which we think significant to this case:

'A decree which incorporates an agreement is a decree of court nevertheless, and...

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22 cases
  • Rodieck v. Rodieck
    • United States
    • Arizona Court of Appeals
    • 13 Febrero 1969
    ...absence of express statutory authority, 'separate maintenance' contemplates only 'alimony' and not property rights. Gillespie v. Gillespie, 74 Ariz. 1, 242 P.2d 837 (1952); McWilliams v. McWilliams, 216 Ala. 16, 112 So. 318 (1927). The Supreme Court of Washington has held that, absent expre......
  • McNelis v. Bruce
    • United States
    • Arizona Supreme Court
    • 29 Diciembre 1961
    ...alimony or support and maintenance. As such the agreement was not subject to modification by the court at a future date, Gillespie v. Gillespie, 74 Ariz. 1, 242 P.2d 837, and the obligations arising thereunder being contractual are debts subject to At the time judgment for divorce was rende......
  • Farley v. Farley
    • United States
    • West Virginia Supreme Court
    • 23 Marzo 1965
    ...C.J.S. Divorce § 301(a)b; In re Webb (D.C.Ind.), 160 F.Supp. 544; Glassford v. Glassford, 76 Ariz. 220, 262 P.2d 382; Gillespie v. Gillespie, 74 Ariz. 1, 242 P.2d 837; Plummer v. Superior Ct. of City and County of San Francisco, 20 Cal.2d 158, 124 P.2d 5; McWilliams v. McWilliams, 110 Colo.......
  • Bainbridge v. Bainbridge
    • United States
    • Idaho Supreme Court
    • 14 Enero 1954
    ...317, 210 P.2d 600, where the court again recognized and applied the rule. The Supreme Court of Arizona, in the case of Gillespie v. Gillespie, 74 Ariz. 1, 242 P.2d 837, approved the rule as announced in the cases of Kastner v. Kastner, 90 Colo. 280, 9 P.2d 290, and Lazar v. Superior Court i......
  • Request a trial to view additional results

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