Law v. Law, 5--5257

• Decision Date: 01 June 1970
• Docket Number: No. 5--5257,5--5257
• Citation: 248 Ark. 894,455 S.W.2d 854
• Parties: Pascal T. LAW, Appellant, v. Patricia Rich LAW, Appellee.
• Court: Arkansas Supreme Court

Page 854

455 S.W.2d 854

248 Ark. 894

Pascal T. LAW, Appellant, v. Patricia Rich LAW, Appellee.

No. 5--5257.

Supreme Court of Arkansas.

June 1, 1970.

Rehearing Denied June 29, 1970.

Arnold, Hamilton & Streetman, Crossett, for appellant.

Lester E. Dole, Camden, for appellee.

BYRD, Justice.

The sole issue on this appeal is whether a recited agreement in a divorce decree with reference to alimony is subject to modification. Upon a petition for modification and a petition for contempt, the trial court held that the agreement was an independent contract entered into by the parties not subject to modification, but found that it would be inequitable for the court to hold the defendant in contempt for failure to comply with the contract entered into because of failure to pay the arrearages.

The matter comes here on a partial record, Ark.Stat.Ann. § 27--2127.6 (Repl.1962), containing only the original pleadings and the decree, together with the petitions for modification and the order of the court as aboved outlined. The original decree, after awarding custody of the eldest son to appellant Pascal T. Law and the three other children to appellee Patricia Rich Law, dismissed appellant's cross-complaint and awarded appellee a divorce upon her complaint. The decree further recites:

'THE COURT FURTHER FINDS that the parties have reached an agreement for the settlement of their property rights and for support, maintenance and alimony which is fair and equitable as between the parties and which should be approved. The terms of such agreement and settlement are as follows:

1. The residence of Plaintiff and Defendant is presently held by them as tenants by entirety. The parties have agreed that the Defendant will convey his interest in such property to the Plaintiff.

2. The Defendant shall pay to the Plaintiff the sum of $550.00 per month for support and maintenance of said children and as alimony to the Plaintiff, such sum being allocated as follows:

A. As alimony for Plaintiff, $250.00 per month.

B. For the support and maintenance of Donna Law, Jennifer Law, and Jefrey Law, $100.00 per month for each.

C. The Plaintiff has agreed that out of such sum to be paid by the Defendant, she will make the payments on the mortgage indebtedness on the residence; make the remaining payments on a 1964 Buick Special automobile, which automobile is awarded to the Plaintiff; and that she will make the remaining payments due on the purchase price of a piano.

3. The 1964 Buick Special, presently in the possession of the Plaintiff, is awarded to her, together with household goods, furniture, and equipment in the residence.

4. The Plaintiff is awarded the right to continue to reside in the residence presently occupied by her.

5. Support and maintenance payments for each of the three children hereinabove named, in the custody of Plaintiff. shall be continued so long as such child shall be in school or college attendance. At the end of such time, the $100.00 per month support and maintenance payment allocated to such child shall be eliminated from the payments made hereunder to the Plaintiff, and the sum of $50.00 per month shall be added to the alimony payment due Plaintiff.'

By Ark.Stat.Ann. § 34--1211 (Repl.1962), it is provided that when a decree shall be entered, the court shall make such order touching the alimony of the wife and the care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable. Section 34--1213 authorizes the court upon application of either party to make such alterations from time to time as to the allowance of alimony and maintenance as may be proper. Section 34--1214 directs that in every final judgment for divorce the court shall make an order with reference to a division of property.

Our cases, McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946); Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954, 256 S.W.2d 555 (1953); and Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953), recognize that the parties do not always leave to the court the determination of the property rights upon proof but that they often reach an agreement with reference thereto. These same cases recognize that some of the contracts with reference to alimony amount to an independent contract or agreement between the parties that is not subject to modification by the court and that other such agreements amount to nothing more nor less than an agreement as to what the court should put in its decree to avoid the taking of proof. The matter was stated in Lively v. Lively, supra, as follows:

'* * * Our cases hold that where a decree for alimony or support is based on an independent contract between parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court's award and is not subject to modification except by consent of the parties. Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am.St.Rep. 102; McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938; Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439. Although a court of equity may decline to enforce payments due under an independent agreement by contempt proceedings where changed circumstances render such payments inequitable, the wife retains her remedy at law on the contract. Pryor v. Pryor, supra.

There is a second type of agreement in which the parties merely agree upon the amount the court should fix by its decree as alimony or support, without intending to confer on the wife an independent cause of action. This type agreement becomes merged in the decree and loses its contractual nature so that the court may modify the decree. Holmes v. Holmes, 186 Ark. 251, 53 S.W.2d 226; Wilson v. Wilson, 186 Ark. 415, 53 S.W.2d 990; Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954.'

Appellee, to sustain the holding of the trial court that the agreement involved here is an independent agreement not subject to modification, relies upon McCue v. McCue, supra, and argues that Mr. Law here was so anxious to mary his present spouse that he met with the respective attorneys and entered into the alleged independent agreement.

We are unable to agree with appellee because in the first place there is nothing in the record to show the facts which she argues. Furthermore, since the appellee was relying upon an independent contract the burden of proving the existence thereof was upon appellee, 17A C.J.S. Contracts § 579.

So far as the record here shows the only agreement reached by the parties is the recitals in the decree--i.e., the agreement was not otherwise reduced to writing. We can find nothing in the decree to indicate that the agreement reached was intended to be anything other than a stipulation as to the amount the court should fix for alimony. If the parties had intended otherwise, it would have been a simple matter to have so stated as was done in Armstrong v. Armstrong, 248 Ark. ---, 454 S.W.2d 660 (1970), handed down this date.

Reversed and remanded.

FOGLEMAN, J., dissents.

FOGLEMAN, Justice (dissenting).

Applications made of easily stated rules relating to the subject matter before this court in this case and in Armstrong v. Armstrong, 454 S.W.2d 660 (decided today), have done little to minimize the apparent conflicts in our decisions which the court, speaking through the late Chief Justic Griffin Smith, found so greatly in need of harmonizing. ¹ I have a feeling that the decisions in these two cases do less to allay the confusion than they do to intensify it.

The cardinal point in making the distinction between the two types of agreement discussed in the majority opinion is the effect of the particular agreement either to retain an independent cause of action on the contract or to merge the agreement into the court's decree to the extent that it loses...