Marriage of Olsen, Matter of

• Citation: 24 Wn.App. 292,600 P.2d 690
• Decision Date: 19 September 1979
• Docket Number: No. 3064-II,3064-II
• Parties: In the Matter of the MARRIAGE OF Julia Elizabeth Child OLSEN, Appellant, and John Edward Olsen, a/k/a Jack Olsen, Respondent and Cross-Appellant.
• Court: Court of Appeals of Washington

Page 292

24 Wn.App. 292

600 P.2d 690

In the Matter of the MARRIAGE OF Julia Elizabeth Child

OLSEN, Appellant,

and

John Edward Olsen, a/k/a Jack Olsen, Respondent and Cross-Appellant.

No. 3064-II.

Court of Appeals of Washington, Division 2.

Sept. 19, 1979.

[600 P.2d 692] J. Rex Behrhorst, Port Angeles, for appellant.

Ronald N. Richards, Port Angeles, for respondent.

PEARSON, Chief Judge.

Julia Olsen appeals from an order reducing the amount of support required to be paid her by her ex-husband, Jack. She contends that the trial court lacked jurisdiction to reduce this obligation as it was controlled by a separation agreement between the parties precluding modification except by mutual consent. Respondent, Jack Julia and Jack Olsen were married in Kansas in 1954 and signed a separation agreement in 1966, while respondent was living in New York and petitioner was living in Connecticut. The agreement stated that petitioner was to receive the family car, proceeds from the sale of the family home, all personal property (except respondent's personal effects), and custody of the couple's 3 children, then ages 10, 7 and 6. Respondent agreed to pay $200 per week "support." Paragraph 11 of the agreement provided that the agreement would be nonmodifiable absent mutual consent.

Olsen, cross-appeals on the ground that the court's reduction did not go far enough. He argues that he should have been given credit for past payments made in excess of his legal obligation. We affirm the judgment of the Superior Court.

Later that same year, the parties obtained a Mexican divorce and had the separation agreement incorporated by reference in the divorce decree. The decree states that respondent was present in Mexico at the time of the divorce and had resided there for the appropriate length of time, and that petitioner appeared through her attorney. The validity of this decree has not been challenged. See generally, Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965).

In 1968 petitioner, who was then living in Kansas, and respondent, who had moved to Colorado, signed an "addendum" to the 1966 separation agreement whereby respondent agreed to increase the support to $1,100 per month and to make an annual lump sum payment of $4,000 for his oldest daughter's education. All other terms of the original agreement were to remain in effect.

Following the signing of the addendum, respondent's annual earnings steadily declined from $87,861 in 1969 to $26,657 in 1975. In October 1974, he stopped making support payments (except for $1,000 in November 1974). In September 1975, petitioner, who was still residing in Kansas, filed suit against respondent, now living in The trial court awarded petitioner $12,200 for arrearages which accrued between October 1974 and September 1975 when the petition for modification was filed. However, the court refused to specifically enforce the agreement for future payments and modified the support terms as of October 1975, to provide for $175 per month per child and computed the arrearages between October 1975 and May 1977 as $7,000 (the oldest child having married).

Washington, for past support and specific enforcement of the separation agreement. Respondent answered by filing a counter-petition for modification of the support award. He called the court's attention to the drastic reduction in his income, his impaired eyesight which jeopardized his future earnings, and petitioner's recent inheritance of one-fourth of an estate valued at $472,380.66.

Neither party challenges the award of arrearages for October 1974 to September 1975. It is well settled that a court may not modify maintenance and support payments retroactively. Pace v. Pace, 67 Wash.2d 640, 409 P.2d 172 (1965). At most, the court can only modify maintenance and support provisions as of the date of the filing of the modification petition. See Bowman v. Bowman, 77 Wash.2d 174, 459 P.2d 787 (1969).

Petitioner contends that the court below should not have considered the petition for modification because respondent's support obligation was fixed by the terms of the separation agreement, which included a nonmodification provision. She states that her argument is the same whether the suit is based on the Mexican divorce decree (which incorporates the separation agreement) or the 1966 separation agreement and its 1968 addendum. We are convinced that under Washington law ¹ a trial court is never

absolutely bound to enforce an agreement between a husband and wife regarding support payments and may, under appropriate circumstances, decrease the obligation of the spouse who promised to make support payments.

MODIFICATION OF DECREE

Prior to 1933, the courts had authority only to modify decrees for child support and decrees which did not segregate alimony from child support. See Blethen v. Blethen, 177 Wash. 431, 32 P.2d 543 (1934). An amendment to the divorce law in 1933 gave the courts authority to modify both alimony and support awards. See Laws of 1933, ch. 112, § 2; Duncan v. Duncan, 25 Wash.2d 843, 850, 172 P.2d 210 (1946). Subsequently, our Supreme Court stated that the court's power to modify a judicial decree regarding alimony and support could not be restricted by an agreement between the parties, even if that agreement is incorporated in the decree, unless the alimony and support payments are part of the division of property. See, e. g., Millheisler v. Millheisler, 43 Wash.2d 282, 261 P.2d 69 (1953); Von Herberg v. Von Herberg, 6 Wash.2d 100, 106 P.2d 737 (1940); Troyer v. Troyer, 177 Wash. 88, 30 P.2d 963 (1934). We presume the rule applies whether the agreement is predecretal (as was the 1966 agreement in this case) or postdecretal (the 1968 addendum). See Gorvin v. Stegmann, 74 Wash.2d 177, 443 P.2d 821 (1968); In re Estate of Garrity, 22 Wash.2d 391, 156 P.2d 217 (1945). See also Warrick v. Hender, 198 So.2d 348 (Fla.App.1967); Page v. Page, 30 Ill.App.3d 514, 334 N.E.2d 212 (1975); Blaufarb v. Blaufarb, 18 Misc.2d 334, 186 N.Y.S.2d 806, Aff'd, 9 A.D.2d 86 (1959); Strong v. Strong, 548 P.2d 626 (Utah 1976).

The 1973 Dissolution Act appears to have made a small inroad on the courts' authority to modify maintenance Petitioner contends that even if the decree is modifiable, she is entitled to a separate cause of action on the separation contract itself. Washington law forbids such a suit if the separation contract has "merged" into the decree. Once a merger occurs, suit may only be had on the decree. DeRiemer v. Old National Bank, 60 Wash.2d 686, 689, 374 P.2d 973 (1962); United Benefit Life Ins. Co. v. Price, 46 Wash.2d 587, 283 P.2d 119 (1955); Bullock v. Bullock, 131 Wash. 339, 230 P. 130 (1924). Thus, in order to consider petitioner's contract argument, we must first determine whether a merger has occurred.

awards. It states that a decree of maintenance may be nonmodifiable if the separation contract and the decree itself so provide. See RCW 26.09.070(7). The 1973 Act does not apply to the case at hand because the decree in question precedes the date of the Act. Even if the Act applied, the decree does not state expressly that the maintenance award is nonmodifiable, nor does the support award segregate maintenance from child support. Therefore, under Washington law, the trial court was free to modify the support provisions of the Mexican decree based on changed circumstances and subject to review only for abuse of discretion. Mayo v. Mayo, 75 Wash.2d 36, 448 P.2d 926 (1968).

MERGER

There is no definitive Washington case concerning the question of merger of a separation agreement into a divorce decree; yet a few general observations can be made. If the prior court decree approves, confirms, or incorporates by reference the terms of a separation agreement, Washington courts will nearly always hold that a merger has occurred, See Mickens v. Mickens, 62 Wash.2d 876, 385 P.2d 14 (1963); Millheisler v. Millheisler,supra, unless the decree does not adequately identify the agreement that is to be merged. State ex rel. Ridenour v. Superior Court, 174 Wash. 152, 24 P.2d 418 (1933) overruled on other grounds, Decker v. Decker, 52 Wash.2d 456, 467, 326 P.2d 332 (1958). But ultimately in order to determine whether a merger has The 1966 separation agreement provides in paragraph 7:

occurred the court will look to the intent of the parties and the court as expressed in the documents themselves. Robinson v. Robinson,37 Wash.2d 511, 225 P.2d 411 (1950).

Nothing herein shall prevent the incorporation of this agreement, this agreement shall not be merged in the decree, but shall survive the same, and shall be binding and conclusive upon the parties for all time.

The subsequent divorce decree did not recite the terms of the separation agreement, but simply stated that the matters of custody and support were to be taken care of as provided in the separation agreement. It then went on to say that the agreement "is incorporated by reference into this decree, is not adjudged(,) but shall in all respects survive the decree."

It is apparent from the language of the 1966 agreement that the parties did not intend to merge the agreement with the subsequent decree; and, more importantly, it is clear from the language of the Mexican decree that the Mexican court avoided merging the two. Consequently, we hold there was no merger of the agreement into the decree and the parties were free to pursue their contractual remedies. See Silvestri v. Slatowski, 423 Pa. 498, 224 A.2d 212 (1966).

THE CONTRACT

There has been no challenge to the 1966 separation agreement other than respondent's contesting the validity of the nonmodification clause. Otherwise there is no hint of fraud, overreaching, or incapacity involved in the basic agreement. See In re Marriage of Cohn, 18 Wash.App. 502, 569 P.2d 79 (1977); Peste v. Peste, 1 Wash.App. 19, 459 P.2d 70 (1969). Both parties were represented by counsel and there was consideration on...