Millheisler v. Millheisler
| Decision Date | 17 September 1953 |
| Docket Number | No. 32493,32493 |
| Citation | 261 P.2d 69,43 Wn.2d 282 |
| Parties | MILLHEISLER, v. MILLHEISLER. |
| Court | Washington Supreme Court |
Davis, Trezona, Chastek & Lorenz, Spokane, for appellant.
Malott, Dellwo & Rudolf, Spokane, for respondent.
The issue here presented is whether a written agreement relative to future payments to be made to the wife, which agreement was approved by and made a part of a divorce decree, constituted part of a property settlement or alimony and support money.
It is well settled that the provisions of a divorce decree relative to alimony and support money may be modified on a proper showing, even if the payments were provided for in an agreement between the parties. It is equally well settled that the disposition of property made either by a divorce decree or by agreement between the parties and approved by the divorce decree cannot be so modified. Laws of 1949, chapter 215, § 11, p. 701; Rem.Supp. 1949, § 997-11 cf. RCW 26.08.110. See Duncan v. Duncan, 1946, 25 Wash.2d 843, 172 P.2d 210.
Future payments provided for by an agreement in writing can be either alimony and support money or a property settlement, depending upon the circumstances and the intent of the parties.
We come now to an application of the foregoing principles to the following facts:
Vera L. Millheisler and her husband, J. A. Millheisler, residents of the state of Idaho, entered into a property settlement agreement October 11, 1949, which recited marital difficulties and that they were then living separate and apart and expected to continue so to do, and that they were desirous of making a just and complete settlement of their property rights. It was agreed that certain specific items of real and personal property were to be her separate property and that other property was to be his rseparate property. The portions of the agreement involved in this controversy are a provision that she shall be paid one half of the royalties from certain oil wells in Kansas, which payments were stated to be her 'sole and separate property' and were to continue
'* * * as long as she lives, unless a divorce is obtained by either of the parties hereto and the said first party [Vera L. Millheisler, respondent here] remarries, at which time said royalties to be so paid to her shall cease';
and a provision that she shall receive one half of the net profits from the sale of the portion of the crops received as rent from certain agricultural lands in Kansas, the same to be 'her sole and separate property' and the payments to continue
'* * * so long as said party of the first part lives, unless a divorce is obtained by either or the parties and the said first party remarries, at which time said payments are to cease.'
We quote verbatim the two paragraphs of the agreement which are the basis for Mr. Millheisler's contention that the payment of half the oil royalties and half the net crop rentals constitutes alimony and support money:
'It is agreed by and between the parties hereto that the conveying of the interest of the said party of the second part [J. A. Millheisler, appellant here] in said real and personal property above described to the said party of the first part, and the payments to the said party of the first part of said oil royalties and from the sale of the crops of said agricultural lands is being paid to said party of the first part for her support and maintenance and for the support, maintenance and education of the three minor children of the parties hereto; that said three minor children are named Robert LeRoy Millheisler, of the age of 19 years; John Elmer Millheisler, of the age of 17 years, and Herbert Edward Millheisler, of the age of 15 years.
'It being agreed and understood that the said party of the first part shall have the custody, care and education of said three minor children, provided, further, however, that said party of the second part, their father, shall have the right to visit said children at any and all reasonable times and places and be visited by them.'
We also quote the final five paragraphs of the agreement:
'It is agreed that this contract was entered into by the respective parties with the advice of counsel, and that each believes the same to be a full, fair and equitable settlement of their respective property rights, and,
'It is agreed that this settlement of property rights will be in full force and effect, even though the parties hereto resume marital relations and continue to live as husband and wife, unless it is otherwise provided for in writing by the parties hereto, and
'It is agreed that this settlement of property rights by and between the parties hereto shall be in lieu of any alimony, either temporary or permanent, suit money or attorneys fees in the event an action is instituted for divorce by either of the parties hereto, or contested by either of the parties hereto.
'It is agreed that in the event a divorce is obtained by either of the parties hereto, that if the Court approves this contract, which both of the parties hereby request, that the same be made a part of the decree of divorce and binding upon each of the parties hereto.
'It is further agreed by and between the parties hereto that each of the parties hereby expressly agrees that they will execute all deeds, bills of sale, or any and all other instruments or writings that are necessary and required in order to give full force and effect to the terms and provisions of this contract.'
Supplemental agreements not here material were made December 14, 1950.
The divorce decree, made and entered December 21, 1950, not only granted Vera L. Millheisler an absolute divorce and the custody of the children, but also contained the following paragraph:
'It is further ordered, adjudged and decreed that the Property Settlement Agreement entered into between plaintiff and defendant on the 11th day of October, 1949, together with the two agreements supplementary thereto dated December 14, 1950, and which are filed herewith and are a part of these files, be and the same are hereby approved and confirmed and made a part of this decree by this reference the same as though fully set out herein, and are given full force and effect as a part of the decree of this Court.'
The decree contains no provision for or reference to alimony or support money.
After the divorce Mr. Millheisler moved to Spokane and married again. Vera L. Millheisler, still a resident of Idaho, started an action in Spokane county to compel him to execute the legal documents necessary to...
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Marriage of Olsen, Matter of
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