JOHNSON, Superior Court Judge.
Admiral William A. Glassford and Deborah Leighton Glassford were married on August 25, 1920, in Vancouver, British Columbia. From 1902 to 1947, Admiral Glassford was continuously in the naval service of the United States, and during this period, he necessarily resided where stationed by military or naval assignments. His residences while in the service were many, and often in a foreign land, and some extended over a period of years; but all were temporary and throughout the period of his service, Arizona was his permanent domicile.
In 1938, Admiral Glassford inherited from his mother 160 acres of farm land in Maricopa County as his sole and separate
In July of 1946, he filed a complaint for divorce against his wife, Deborah Leighton Glassford, in Maricopa County, Arizona.
Thereafter, the parties entered into a property settlement agreement dated the 23rd day of September, 1946.
The following are paragraphs of said agreement that are pertinent to the issues involved in this action:
The final order of divorce was entered on the 1st day of October, 1946, before the Superior Court of Maricopa County, and the agreement in question was incorporated in and made a part of the final decree of divorce. Thereafter, Admiral Glassford married his present wife, Henrietta Sherwood Glassford; and having retired from the United States Navy on account of physical disability, he was employed by the Radio Corporation of America to go to Europe as its representative to promote good will and open the way for expansion of business activities of the corporation in Europe. In his capacity as such representative, the Admiral and his wife were expected to, and subsequently did, do an extensive amount of entertaining of foreign government representatives and business and industrial representatives in England and other European countries. He testified that it was expected and understood that in the performance of all such activities he would be assisted by his wife; and her ability and fitness to satisfactorily discharge the duties that would devolve upon her in such capacity were carefully considered and favorably determined by the executives of the Radio Corporation of America before the contract with him was made. For these services he was paid a salary of $1,000 a month.
His first wife, Deborah Leighton Glassford, claims that she is entitled under the property settlement agreement to onefourth of the community income of the Admiral and his present wife, Henrietta Glassford, including the community salary earned by him in the performance of his contract with the Radio Corporation of America. For almost the entire contract period (until after he returned to America in September, 1949), Deborah Leighton Glassford received twenty-five per cent of the salary earned by him under the contract with the Radio Corporation of America. These payments to Deborah Leighton Glassford were discontinued after his return to America on advice of his counsel, upon the grounds that such income constituted the community earnings of the Admiral and his present
The petition was dismissed by the trial court upon the ground that the decree of divorce contained no provision for alimony and that the court had no jurisdiction in the divorce action to construe the contract above referred to between the Admiral and his first wife and to incorporate such construction into the decree as an alimony award. No appeal was taken from the order dismissing the petition. We agree with the trial court that the contract between the Admiral and Deborah Glassford did not provide for this payment of alimony by him to her.
Thereafter, Deborah Leighton Glassford, hereinafter referred to as plaintiff, filed a complaint against William Alexander Glassford, hereinafter referred to as defendant, entitled "Complaint for Accounting and For Declaratory Judgment."
During the course of the trial, the parties agreed that the accounting features of the complaint would be settled without the intervention of the court and were not an issue at the trial and, therefore, it is not considered by the court on this appeal. The plaintiff, in her complaint for declaratory judgment, asks the court to declare the mutual legal rights and duties of each of the parties under the property settlement agreement incorporated in the divorce decree of October 1, 1946, and to declare that the plaintiff is entitled to twenty-five per cent of the gross amount received by the defendant from the Radio Corporation of America and twenty-five per cent of any sums or other assets received by the defendant from any source not excepting the proceeds accruing from the sale of the defendant's separate property acquired by inheritance from his mother.
The defendant's wife, Henrietta Sherwood Glassford, was not made a party to this action but was permitted to intervene, presumably upon the grounds alleged in her proffered complaint that she was from the date of her marriage a resident of Arizona and was a factor in securing the defendant's contract with the Radio Corporation of America, and that she performed many of the duties imposed upon the defendant by such contract, and that all of the income derived from the performance of said contract
The trial court, after hearing the evidence, entered its judgment on the 30th day of April, 1951, decreeing that the plaintiff is entitled to twenty-five per cent of the gross amount received by the defendant from the Radio Corporation of America and from defendant's farming operations within the state of Arizona; also that the plaintiff is entitled to twenty-five per cent of any income received by the defendant, whether the same be separate or community, and, further, that the plaintiff was not entitled to any portion of the proceeds from the sale of farming properties. An appeal was taken to this court from the judgment of the trial court, by the defendant assigning as error that the trial court erred in entering judgment
The plaintiff, Deborah Leighton Glassford, cross-appealed from that portion of the judgment
While this action was pending in the supreme court, the case of Gillespie v. Gillespie, 74 Ariz. 1, 242 P.2d 837, 839, was decided by this court and based on that decision, the defendant, William Alexander Glassford, filed his motion to dismiss the plaintiff's complaint on the ground that the trial court was without jurisdiction to enter any judgment in this cause.
The basis for the present action is the property settlement agreement between the plaintiff, Deborah Leighton Glassford, and defendant, William A. Glassford, which agreement was incorporated in the decree of divorce previously mentioned. The plaintiff's complaint, from which this appeal is taken, contains the title "Complaint for Accounting and Declaratory Judgment" and therein alleges:
And among other things the relief requested of the court is:
We held in the case of Gillespie v. Gillespie, supra, quoting from 27 C.J.S., under the title of Divorce, § 301, page 1159:
Reading Section 9 of the property settlement agreement between the parties involved in this action, hereinbefore quoted, it is clear that it was the intention of the parties that it should become a part of the decree and that the court make it a part of the decree by reference thereto.
Therefore, the property settlement is enforceable not as an agreement but as a decree of the court.
In Gillespie v. Gillespie, supra, we quoted with approval from Hough v. Hough, 26 Cal.2d 605, 160 P.2d 15, the following:
We have, therefore, conclusively settled that once the contract is merged into the decree, any action taken must be based upon the decree of the lower court and not based upon the contract of the parties.
In effect, the plaintiff in this action sued for declaratory judgment for the construction of a valid judicial decree of a court of competent jurisdiction and not as an action on the contract of the parties.
The first question for our determination is whether the plaintiff can maintain an action of this nature under our declaratory judgment statute, Section 27-702, A.C.A. 1939, which reads:
This view appears to be supported by the weight of authority as well as by 16 Am. Jur., Declaratory Judgments, section 23, page 295, which we quote with approval:
It is not the purpose of our declaratory judgment statute to be a substitute for established procedure for review of decrees or appealable orders. Shattuck v. Shattuck, supra.
We quote, with approval, from the case of Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, at page 812, as follows:
It is our conclusion, therefore, that our declaratory judgment statute does not contemplate a declaration of one's status or rights under a decree of a court of competent jurisdiction and that, therefore, plaintiff has not established a right to a declaratory decree.
However, plaintiff is not without remedy. She may petition the trial court in the divorce action for a determination of the amount now due under the provisions of the decree of divorce.
Judgment reversed, with directions to dismiss plaintiff's complaint.
STANFORD, C.J., and PHELPS, LA PRADE and UDALL, JJ., concur.
Justice DUDLEY W. WINDES being disqualified, the Honorable J. MERCER JOHNSON, Judge of the Superior Court of Pima County, was called to sit in his stead.