SMITH, Justice.
This is an appeal from an order denying modification of a divorce decree, entered June 21, 1945.
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:
By paragraph 1 the parties make a "division and settlement of the property."
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.
Paragraph 3 of the agreement in part reads:
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:
Each party in execution of the agreement produced a witness. Appellant's present counsel witnessed 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 mater 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).
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 of the agreement "* * shall be embodied in the decree * * * so far as support and maintenance for the Wife is concerned, and to the extent such provisions may be acceptable to the court." (Emphasis supplied.)
In effect the parties agreed as between themselves, that the support provisions contained in the property settlement agreement should be controlling, whether or not they "may be acceptable" to the court and embodied in the decree.
The decree also supports the view that the court considered the agreement to be a property settlement inasmuch as the decree contained the finding that the parties had entered into an agreement "with respect to a division and settlement of the property rights of the plaintiff and defendant," and the court "approved and confirmed" the agreement.
Appellant does not contend that the entire agreement was merged into the decree; but she does contend in effect that the provision for support was a separate and divisible part of the property settlement, and that such portion of the agreement was merged into the decree.
If such provisions are integrated, the decree may not be modified unless the parties have provided for and agreed to such a modification. Roesbery v. Roesbery, supra. In Kimball v. Kimball, supra, this Court said:
Accordingly, the principal question to be resolved is whether paragraph 2 of the property settlement agreement is part of an integrated agreement.
In Black's Law Dictionary, 4th Ed., p. 946, it is stated:
In Kimball v. Kimball, supra, this Court stated:
In the Kimball case this Court quoted with approval from Plumer v. Plumer, 48 Cal.2d 820, 313 P.2d 549, 552, as follows:
Roesbery v. Roesbery, supra, adds the additional criteria that the agreement must be a final and complete expression of the parties as to their rights and duties arising out of the marital relationship, and that the obligation to make monthly support payments be integrated into the property settlement. Said the Court: "Such an agreement would be destroyed by subsequent modification without consent of the parties." 88 Idaho 521, 401 P.2d 809. See also Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873 (1954); Plumer v. Plumer, supra; Kimball v. Kimball, supra. In the Roesbery case this Court further stated: "Only where there has been a merger of the agreement into the decree itself does the court have the authority to make a modification, and any modification is then of the court's order and not of the agreement." 88 Idaho at 521, 401 P.2d at 809. See also Bainbridge v. Bainbridge, 75 Idaho 13, 265 P.2d 662 (1954).
The property settlement agreement meets the criteria set forth in the Roesbery and Kimball cases. The agreement recites that the parties desire to settle their property rights and that the Husband desires to make fair and reasonable provision for the maintenance and support of the Wife. The agreement then states that "in consideration of the premises and the mutual promises and undertakings herein contained and for other good, valuable and sufficient considerations, the parties agree:" The parties then make a division of their property; and respondent Husband makes provision for the support and maintenance of appellant Wife. The Wife then accepts the provisions made for her, in full satisfaction for her support and maintenance. Each party relinquishes all claims and rights to share in any capacity, or to any extent whatsoever in the estate of the other party. "The Wife agrees to receive the amounts of money and personal property set forth in paragraphs 1 and 2 above in full and complete settlement and release of all claims and demands of every kind * * * against the Husband" including support, maintenance or alimony incident to the marriage relation, and including the Husband's properties which the Husband may presently own or in the future acquire, "it being understood that this
A fair interpretation of those provisions of the agreement leads to the inescapable conclusion that the parties intended a fair and just distribution of their properties; and inasmuch as they were living separate and apart, that they also intended to make reasonable and adequate provisions for the support and maintenance of the Wife. The language used shows that the settlement and support arrangements then made were intended to apply from that time forward irrespective of divorce, and that both parties accepted and ratified the agreement. Roesbery v. Roesbery, supra; Plumer v. Plumer, supra.
Though the parties agreed that the terms of the agreement concerning support and maintenance of the Wife should be embodied in the decree "to the extent such provisions may be acceptable to the court," nevertheless such phraseology points up the conclusion in the absence of merger, that the parties intended those provisions as may be so embodied in the decree, should be for the purpose "only to identify the agreement so as to render its validity res judicata in any subsequent action based upon it." Flynn v. Flynn, supra. See also Kimball v. Kimball, supra.
We therefore conclude that the provisions of the agreement are not separable; also, that the agreement was not, nor were the provisions thereof relating to support and maintenance merged into the divorce decree.
Appellant assigns as error the failure of the trial court to consider the uncontroverted facts set forth in her affidavit filed in support of her motion for modification of the divorce decree.
After alleging substantial changes in economic conditions of the parties, appellant avers:
The record shows that appellant did not rely upon oral promises, in addition to the property settlement agreement, when she executed the agreement. To the contrary the agreement specifically covered this aspect, in language as follows:
Nor does the record support appellant's averment that she was without independent legal counsel at the time she entered into the agreement. Paragraph 7 of the instrument in part reads:
Moreover, the same counsel represented appellant in the divorce action, as now represents her in the proceeding at bar. Further, appellant does not rest her case in fraud. In her brief she states: "We are not suggesting that any overt fraud was perpetrated by the defendant [respondent]. Nor do we suggest that the property settlement agreement was induced by fraud."
Appellant assigns as error the failure of the trial court to award appellant attorney fees, travel and suit costs. I.C. § 32-704 provides: "While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary * * * to prosecute or defend the action." This section of the statute has been construed to include attorney fees, costs of litigation, and travel expenses incurred by the wife in a proceeding for modification of a divorce decree. Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963); Daniels v. Daniels, 81 Idaho 12, 336 P.2d 112 (1959); Wright v. Wright, 76 Idaho 393, 283 P.2d 1101 (1955); Wenzel v. Wenzel, 76 Idaho 7, 276 P.2d 485 (1954); Gifford v. Gifford, 50 Idaho 517, 297 P. 1100 (1931).
Appellant's averments, contained in her affidavit in support of her motion for modification, to the effect that she is unable to pay travel expenses, attorney fees and costs are couched in the form of conclusions. In the absence of any factual showing of her incomes, resources and financial condition, the showing which she submitted is insufficient to establish an abuse of discretion on the part of the trial court in denying her motion for allowance of such expenses, fees and costs.
The order of the district court is affirmed. Costs to respondent.
McQUADE and TAYLOR, JJ., and DUNLAP, D. J., concur.
KNUDSON, J., sat at the argument but retired from office prior to the decision.
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