Turner v. Turner

• Decision Date: 31 January 1966
• Docket Number: No. 9628,9628
• Citation: 410 P.2d 648,90 Idaho 308
• Parties: Helen Ashkins TURNER, Plaintiff-Appellant, v. John McCullough TURNER, John McCullough TURNER, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 648

410 P.2d 648

90 Idaho 308

Helen Ashkins TURNER, Plaintiff-Appellant, v. John McCullough TURNER John McCullough TURNER, Defendant-Respondent.

No. 9628.

Supreme Court of Idaho.

Jan. 31, 1966.

Bird & Hobdey, Gooding, Everett B. Taylor, Sun Valley, for appellant.

Hawley, Troxell, Ennis & Hawley, Boise, for respondent.

SMITH, Justice.

This is an appeal from an order denying modification on a divorce decree, entered June 21, 1945.

Appellant sought an increase of her support payment from $300 a month, as provided by the decree, and by a property settlement agreement which appellant and respondent entered into April 30, 1945. Appellant sought modification on the grounds:

1. The economic conditions of the parties have changed in the 20 years since the parties were divorced;

2. Respondent orally induced appellant to sign the property settlement and thereby to transfer to him certain properties in exchange for his agreement 'to pursue [provide] additional support payment in the future when it became necessary' for appellant's well being; and

3. Appellant had no independent legal advice concerning the fairness and the implications of the property settlement agreement.

The trial court denied the motion for modification on the ground that as a matter of law the divorce decree is not subject to modification.

The pleadings in the divorce action show that appellant and respondent entered into a marriage settlement agreement April 30, 1945, which they both accepted and ratified.

The agreement sets forth the obligations of each party, with respect to the division of the property, and the maintenance and support of appellant. The salient portions of the agreement are as follows:

'WHEREAS, the parties are desirous of settling their property interests and the Husband is desirous of making fair and reasonable provision for the maintenance and support of the Wife * * *.

* * *

* * *

'NOW, THEREFORE, in consideration of the premises and the mutual promises and undertakings herein contained and for other good, valuable and sufficient considerations, the parties agree:'

By paragraph 1 the parties make a 'division and settlement of the property.'

Then follow clauses to the effect: the Wife shall retain the household furniture and equipment; the Husband shall transfer and assign certain listed stocks and bonds to the Wife, and each party shall retain other tangible personal property which each possesses.

By paragraph 2 the parties agree that in consideration of the Wife's supporting herself the Husband shall make certain provisions for her support and maintenance.

Then follow the provisions that the Husband shall pay $300 monthly to the Wife; the Husband shall obtain a $10,000 policy of life insurance the Wife to be named the beneficiary, and pay the Wife sufficient moneys wherewith to pay the premiums on the policy; the Husband shall pay the Wife such additional amount as required to pay income taxes on the amounts which she receives as support money and for payment of premiums on the life insurance policy; the payment of all such benefits to cease should the parties be divorced and the Wife remarry.

[90 Idaho 311] Paragraph 3 of the agreement in part reads:

'The Wife does and shall accept the provisions made for her in full satisfaction for her support and maintenance and she hereby covenants and agrees that she will not at any time hereafter contract any debt or debts, charge or liability whatever for which the Husband or his property or estate shall or may become liable * * *.'

By paragraph 4 of the agreement each party released and relinquished any right to share in any capacity in the estate of the other.

Paragraphs 5, 6 and 7 of the agreement read:

'5. The Wife agrees to receive the amounts of money and personal property set forth and described in paragraphs 1 and 2 above in full and complete settlement and release of all claims and demands of every kind name and nature against the Husband including all liability now or at any time hereafter existing or accruing either on account of support, maintenance, alimony, temporary or permanent, * * * incident to the marriage relation intending hereby to relieve the Husband entirely from all claims and demands and from any that may hereafter attach, arising in any manner from the relation of Husband and Wife and arising in any manner from any and all dealings and costs, charges and expenses as well as alimony, either temporary or permanent, incident to any divorce suit now pending or that may hereafter be commenced by either of Husband or Wife against the other, * * * it being understood that this settlement is a total and complete release of the Husband by the Wife of all matters and charges whatsoever and that the Wife shall after this settlement require nothing whatever of the Husband, as though the marriage relation had never existed between them.

'6. This agreement and all its terms and provisions shall survive and continue in full force and effect, notwithstanding any decree of divorce or separation which may be granted in any action between the parties in any jurisdiction. Should a decree of divorce or separation be granted in favor of either party, the terms hereof shall be embodied in the decree of the court in so far as support and maintenance for the Wife is concerned, and to the extent that such provisions may be acceptable to the court.

'7. The parties have incorporated in this agreement their entire contract. No oral statement or prior written matter extrinsic to this agreement shall have any force or effect. The parties are not relying upon any representations other than those expressly set forth herein. Each of the parties hereto has been advised with regard to this agreement by their independent counsel.'

Each party in execution of the agreement produced a witness. Appellant's present counsel witnesses her signature.

The issue presented for decision, as stated by the trial court, was 'whether or not said decree of divorce * * * is as a matter of law subject to modification * * * and in effect whether or not the defendant [respondent] is as a matter of law entitled to a judgment on the pleadings on the basis of the entire record on file herein * * *.'

The court resolved the issue in favor of respondent, and by its order denied appellant's motion to modify the decree. This appeal resulted.

Appellant assigns error of the trial court in concluding as a matter of law that the decree is not subject to modification.

Appellant contends, inasmuch as the support provisions of the property settlement agreement are contained in the decree, that those provisions become merged in the decree and hence are subject to modification.

Respondent on the other hand, asserts that the decree is not subject to modification because the support provision of the decree is based upon an integrated agreement which may not be modified except by mutual agreement of the parties.

The district court may modify provisions of a decree for the support of the wife, '* * * and the court may, from time to time, modify its orders in these respects.' I.C. § 32-706; Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964); '* * * but this authority to modify cannot be extended to modification of an agreement of the parties; for only when there has been a merger of the agreement into the decree itself does the court have the authority to make such a modification, and any modification is then of the court's order and not of the agreement. Bainbridge v. Bainbridge, 75 Idaho 13, 265 P.2d 662.' Kimball v. Kimball, 83 Idaho 12, 15, 356 P.2d 919, 921 (1960).

Kimball v. Kimball, supra, contains a dissertation on merger, quoted with approval from Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865 (1954), in part as follows:

"Merger is the substitution of rights and duties under the judgment or the decree for those under the agreement or cause of action sued upon. [citations] The question as to what extent, if any, a merger has occurred, when a separation agreement has been presented to the court in a divorce action, arises in various situations.' * * *

"In any of these situations it is first necessary to determine whether the parties and the Court intended a merger. If the agreement is expressly set out in the decree, and the court orders that it be performed, it is clear that a merger is intended. [citations] On the other hand, the parties may intend only to have the validity of the agreement established, and not to have it become a part of the decree enforceable as such. [citations] Whether or not a merger is intended, the agreement may be incorporated into the decree either expressly or by reference. If a merger is not intended, the purpose of incorporation will be only to identify the agreement so as to render its validity res judicata in any subsequent action based upon it. [citations] If a merger is intended, the purpose of incorporation is, of course, to make the agreement an operative part of the decree. * * *" 83 Idaho at 15-16, 356 P.2d at 921-922.

See also Roesbery v. Roesbery, 88 Idaho 514, 401 P.2d 805 (1965).

Did the parties and the court intend a merger of the agreement into the divorce decree?

The pleadings in the divorce action show that the parties entered into 'a property settlement' and that they both accepted and ratified the agreement evidencing the settlement; also, that appellant requested the court to approve 'said property settlement providing for the maintenance and support of said plaintiff.' It thus is clear that the parties intended the support payments should be part and parcel of the property settlement made in favor of appellant, and not alimony to be fixed by the court.

Paragraph 6 of the agreement provides, that the agreement 'and all its terms and provisions shall survive and continue in full force and effect' notwithstanding any divorce or separation of the parties; and that should a decree of divorce or separation be granted, the terms...