Kersh v. Kersh, 5--6227

• Decision Date: 16 July 1973
• Docket Number: No. 5--6227,5--6227
• Citation: 497 S.W.2d 272,254 Ark. 969
• Court: Arkansas Supreme Court
• Parties: N. B. KERSH, Appellant, v. Mary KERSH, Appellee.

Page 272

497 S.W.2d 272

254 Ark. 969

N. B. KERSH, Appellant, v. Mary KERSH, Appellee.

No. 5--6227.

Supreme Court of Arkansas.

July 16, 1973.

Wendell O. Epperson, Malvern, for appellant.

J. Winston Bryant, Malvern, for appellee.

JONES, Justice.

This is an appeal by N. B. Kersh from a chancery court decree denying his petition to modify a divorce decree in regard to alimony.

The facts appear as follows: Dr. Kersh and his wife, Mary, were married in 1945 and separated on or about January 20, 1969. They had one child who was of full age and married at the time of the separation. Following their separation, and in contemplation of divorce, Dr. and Mrs. Kersh entered into a written property settlement agreement on January 28, 1969, under which they made a complete division of their real and personal properties. On January 29, 1969, Mrs. Kersh filed her petition for divorce alleging general indignities as grounds therefor. Dr. Kersh executed an entry of appearance and waiver on February 14, 1969, and it was filed on March 4. The evidence on behalf of Mrs. Kersh consisted of her testimony and that of her supporting witness, Katherine Jones, taken by deposition. A divorce was granted to Mrs. Kersh by decree filed on March 4, 1969, and Dr. Kersh subsequently remarried.

The property settlement agreement consists of five pages in the transcript and under item seven on the second page an agreement pertaining to alimony appears as follows:

'HUSBAND agrees to pay to WIFE alimony in the sum of Four Hundred Dollars ($400.00) a month, with the first such alimony payment being due on March 1st, 1969, and a like payment in the amount of $400.00 to be due on the First day of each succeeding month thereafter until such time as the death or remarriage of said WIFE. Further, in connection with this alimony to be paid to WIFE by HUSBAND, said HUSBAND agrees that he will not claim WIFE as a dependent for income tax purposes.'

No alimony is mentioned in the divorce decree but the decree does recite as follows:

'. . . the Court doth find: * * * That the parties hereto have previously entered into a property settlement agreement which settles and disposes of all their property rights, and this property settlement agreement is incorporated herein by reference and made a part hereof as fully as though set out herein word for word.'

On August 13, 1971, Mrs. Kersh filed a 'Petition for Citation' alleging that on January 28, 1969, she and Dr. Kersh entered into a property settlement agreement whereby he agreed to pay her alimony at $400 per month; that the property settlement agreement was made a part of the decree, and that the defendant had failed and refused to make the payments as agreed. She prayed that Dr. Kersh be cited to show cause why he should not be held in contempt for refusal to comply with the order of the court.

Dr. Kersh then filed a 'Petition to Modify Decree' in which he alleged and set out the property settlement agreement and alleged that there had been such change in circumstances as would warrant the reduction in the amount of alimony and support payments to the plaintiff by $200 per month. He prayed that the amount of alimony be reduced to $200 per month.

Mrs. Kersh filed a demurrer to the petition for modification challenging the chancery court's jurisdiction to modify the alimony provision of the property settlement agreement. Following a hearing on the petitions and demurrer, the court denied same under findings stated as follows:

'1. That the 'Property Settlement Agreement' and the alimony payments contained therein on the part of the Plaintiff and Defendant were agreed to, between the parties, prior to the entry of the Decree, that said 'Property Settlement Agreement' is a binding contract between the parties and cannot be modified by this Court.

2. The Court further finds that the evidence submitted by the Defendant, N. B Kersh, is insufficient to justify the change in alimony payments as contained in the 'Property Settlement Agreement,' assuming the Court had jurisdiction to effectuate such a change.'

On the record now before us, we are unable to say that the chancellor erred in finding that the property settlement agreement, including the alimony provision, was a binding contract between the parties and could not be modified by the court because of lack in jurisdiction of the subject matter.

It is clear from the record before us, that in contemplation of divorce, Dr. and Mrs. Kersh gave considerable attention to their property settlement agreement, which included Dr. Kersh's agreement to pay to Mrs. Kersh $400 per month for the remainder of her life or until she remarried. It is apparent from the record that the agreement was carefully drawn by the attorney who presented the petition to the court upon entry of appearance and waiver by Dr. Kersh and the depositions of Mrs. Kersh and her witness. Neither of the parties personally appeared before the chancellor and apparently both parties were satisfied with the agreement they had made. Both Dr. and Mrs. Kersh were present in the attorney's office when the property settlement agreement was dictated and signed by them and both of their signatures were witnessed by the attorney who prepared the instument. Dr. Kersh did not agree in this instrument that he would be agreeable to th chancellor awarding $400 per month in alimony in the event a divorce was granted to Mrs. Kersh. He agreed to pay $400 per month over a specific period of time and further agreed in the same connection that he would not claim Mrs. Kersh as a dependent for income tax purposes.

We are of the opinion that Dr. and Mrs. Kersh entered into such independent contract for the payment of alimony as was discussed in Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409, wherein we said:

'Appellant first contends the chancellor was without...