McInturff v. McInturff, CA

• Decision Date: 12 January 1983
• Docket Number: No. CA,CA
• Citation: 644 S.W.2d 618,7 Ark. App. 116
• Parties: Mervel L. McINTURFF, Appellant, v. Robert Donald McINTURFF, Appellee. 82-164.
• Court: Arkansas Court of Appeals

Page 618

644 S.W.2d 618

7 Ark.App. 116

Mervel L. McINTURFF, Appellant, v.Robert Donald McINTURFF, Appellee.

No. CA 82-164.

Court of Appeals of Arkansas.

Jan. 12, 1983.

Rehearing Denied Feb. 9, 1983.

Howell, Price & Trice, P.A., Little Rock, for appellant.

Boyett, Morgan & Millar, P.A., Searcy, for appellee.

GLAZE, Judge.

This case involves a post-decretal divorce action in which the trial court modified its decree which incorporated the parties' agreement styled "Child Custody, Support and Property Settlement."Pursuant to the agreement, appellant was awarded custody of the two minor children, and appellee was credited with a lump-sum payment to cover his child support obligation by releasing his equity interest in the parties' house and lot.Less than two years after the divorce, the children moved in with appellee; appellee gained legal custody of the children and petitioned the court for a pro-rata refund of the lump-sum payment made under the parties' agreement.The court granted appellee's petition, and this appeal followed.We find the court erred.

We have a wealth of case authority dealing with when an agreement, in divorce actions, can and cannot be modified once it is merely approved by the court or incorporated and made a part of the decree.¹None of these cases, however, is dispositive of the issue posed by the facts here.

In the instant case, the parties executed an independent contract which was incorporated and made a part of the divorce decree.Their expressed intent was to settle all rights in their real and personal property, financial matters, custody of and visitation with the children, and alimony and child support obligations.In cases in which the parties' contract is incorporated into the decree, the general rule is that the court cannot alter or modify it.SeeArmstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660(1970);andPryor v. Pryor, 88 Ark. 302, 114 S.W. 700(1908).An exception to this rule has been recognized by our courts in custody and child support matters.Provisions in such independent contracts dealing with custody and child support have been held not binding on our courts.SeeHitt v. Maynard, 265 Ark. 31, 576 S.W.2d 211(1979);andReiter v. Reiter, 225 Ark. 157, 278 S.W.2d 644(1955).However, even though child support has been a recognized exception to the general rule, the Supreme Court has on one occasion refused to modify a parties' independent agreement when it provided for a $200 monthly payment which was designated as alimony and child support.In other words, the amount attributable to child support was not severable from the alimony award.Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439(1950).

Appellee argues that the provisions the trial court modified involved child support and therefore under the rule in Hitt and Reiter, the court had the power to alter that part of the parties' agreement.We cannot agree.Our de novo review of the record reflects that, much like the situation in Bachus, supra, the provisions for support are not severable because appellee's equity interest designated as child support was also the basis of or consideration for the division of property contained in other provisions.In fact, we find the parties' well-drafted agreement is integrated in such a fashion that the property, debt, alimony and support provisions constitute reciprocal consideration.For example, appellee conveyed his $43,200 equity interest in the family residence and lot to appellant, subject to appellant's assuming the mortgage indebtedness on the property.This lump-sum amount was stipulated and was to cover appellee's child support obligations during the children's minority.A second mortgage...