I would modify the divorce decree by eliminating the husband's obligations to pay the wife's household *Page 319 and automobile expenses and a monthly sum to her if she becomes unemployed. Specifically, I would hold: (1) the divorce decree, in so far as it relates to alimony, is subject to modification based on a change of circumstances regardless of the fact that the decree incorporates an agreement of the parties; (2) this is true notwithstanding paragraph XI of the agreement that states "remarriage of the wife shall not * * * relieve husband of any of the obligations agreed to herein"; (3) the provisions for the payment of the wife's household and automobile expenses and a monthly sum to her are in the nature of alimony; and (4) the husband has proved a substantial change of circumstances.
In order to reach these conclusions it is unnecessary to go beyond Oregon statutes and cases.
(1) A divorce decree that incorporates the parties' agreement is subject to modification to the same extent as any other divorce decree.
ORS 107.135 provides:
"(1) The court has the power at any time after a decree of annulment or dissolution of marriage or of separation is granted, upon the motion of either party and after service of notice on the other party in the manner provided by law for service of a summons, to:
"(a) Set aside, alter or modify so much of the (decree as may provide for the appointment and duties of trustees, for the custody, support and welfare of the minor children, or for the support of a party * * *.
"* * * * *."
It has long been held that the statutory authority to "modify so much of the decree as may provide for * * * the support of a party" is not limited to a decree composed by a trial judge, but, instead, the authority *Page 320 extends to a decree that incorporates an agreement of the parties. Jensen v. Jensen, 249 Or. 423, 438 P.2d 1013 (1968);Ross v. Ross, 240 Or. 561, 403 P.2d 19 (1965); Feves v. Feves,198 Or. 151, 254 P.2d 694 (1953); Nelson v. Nelson, 181 Or. 494,182 P.2d 416 (1947); Briggs v. Briggs, 178 Or. 193, 165 P.2d 772, 166 ALR 666 (1946); Prime v. Prime, 172 Or. 34, 139 P.2d 550 (1943); Warrington v. Warrington, 160 Or. 77, 83 P.2d 479 (1938); Warner v. Warner, 145 Or. 541, 28 P.2d 625 (1934); Phy v.Phy, 116 Or. 31, 236 P. 751, 240 P. 237, 42 ALR 588 (1925).
In Jensen, the court stated that the provisions of a decree, incorporating the parties' agreement "for monthly support payments" were "subject to change under changing conditions."249 Or at 431.
In Feves, the parties' agreement had been incorporated in a divorce decree. The court stated "the right to alimony is statutory and is not based on any contractual obligations," and therefore the decree "was subject to modification upon changed conditions." 198 Or at 158-59.
In Briggs, the court stated:
"* * * [T]he agreement of the parties made in anticipation of divorce does not constitute a bar to a modification of a decree for alimony if the evidence satisfactorily shows that such decree should be modified by reason of changed conditions." 178 Or at 198.
In Prime, the court stated:
"* * * As to the executory provisions of an agreement [incorporated in a divorce decree], if they are found to be in the nature of alimony, the same power which may refuse to approve them in the first instance may also modify them after approval *Page 321 in the event of changed conditions * * *." 172 Or at 46.
In Warrington, the court stated:
"Undoubtedly the decided trend of modern authorities is to the effect that, where a court has the power vested in it by statute to modify a decree for alimony, the exercise of such power is not affected by the fact that the parties agreed concerning the amount of alimony to be paid and that such stipulation was incorporated in the decree * * *." 160 Or at 81.
Several reasons have been stated for the rule that denies conclusive effect to file parties' alimony agreement when incorporated in a divorce decree. In Warner v. Warner, supra, the court stated that such an agreement is "not strictly a contract," but "in the nature of a stipulation in lieu of testimony," and "is made in contemplation of the statute * * * giving the court power to modify that portion of the decree" relating to support. 145 Or at 545. In Prime v. Prime, supra, the court quoted with approval from Herrick v. Herrick, 319 Ill. 146,149 N.E. 820 (1925):
"`In the instant case the agreements, which * * * were incorporated in the decree as a proper provision of alimony, became merged in the decree when entered, and thereupon lost their contractual nature, at least, to the extent that the court has the power to change and modify the decree, upon the application of either party, when a change of circumstances justifies the modification.' Herrick v. Herrick, supra, 149 N.E. at p. 823." 172 Or at 48.
In Warrington v. Warrington, supra, the court implied that any other result would be unacceptable because it would allow a "private agreement" to "oust the court of jurisdiction" to modify support obligations pursuant to ORS 107.135 (1) (a).160 Or at 80. *Page 322
(2) The court's authority to modify is not limited by paragraph XI of the parties' agreement.
Paragraph XI of the parties' agreement provided that "remarriage of the wife shall not * * * relieve husband of any of the obligations agreed to herein." This, along with the rest of the parties' agreement, was incorporated in the divorce decree.
In Prime v. Prime, supra, the parties' agreement was incorporated in the divorce decree. The decree stated that the parties' agreement
"`* * * is hereby ratified, confirmed and approved, and that said settlement shall forever remain binding upon the parties to this suit.' " 172 Or at 39.
In discussing the effect of this language in the decree the Supreme Court stated:
"It further appears that where by statute the court has power to modify executory provisions it will retain that power although the agreement of the parties and the decree of the court provide that the original allowance shall never be changed * * *." 172 Or at 49.
See also, Picker v. Vollenhover, 206 Or. 45, 70-73, 290 P.2d 789 (1955). It follows that the authority to modify in this case is not limited by the language of paragraph XI.
(3) The provisions for the payment of household and automobile expenses and a monthly sum are in the nature of alimony.
The agreement in this case provided:
1. The wife would receive a house and the husband would pay off the mortgage on it.
2. So long as the wife lived in the house the husband *Page 323 would pay all maintenance expenses plus insurance, taxes and utilities.
3. So long as the wife needed it the husband would provide the wife with the use of an automobile which he was obligated to maintain.
4. If the wife became unemployed by reason of illness or injury, the husband would pay her $350 per month.
As the majority points out, in so far as the provisions of a decree constitute a division of property, such provisions are forever binding and are not subject to modification. The transfer of the house, with the provision that the husband should satisfy the mortgage, was clearly division of property and not subject to modification.
The requirements that the husband pay for the maintenance of the house and an automobile were not labeled in the agreement or the decree, but I am satisfied that under existing law those payments constituted support payments as distinguished from division of property. See, Prime v. Prime, supra; Warrington v.Warrington, supra; Warner v. Warner, supra; Phy v. Phy, supra. The monthly sum to be paid in the event of illness was labeled "alimony." As support payments they are subject to modification based on changed circumstances.
(4) The husband has proved a substantial change of circumstances.
At the hearing below, the husband established to my satisfaction the following changes in circumstances since the date the parties were divorced:
1. The wife has remarried. Her present husband *Page 324 is employed and resides with her in the home which her former husband is required, by the terms of the initial decree, to maintain. As far as the record reflects, the wife's present husband is able to support her.
2. At the time of the divorce the wife was ill; her condition had been diagnosed as diabetes. Since then it has been learned that diagnosis was in error. The wife now apparently enjoys excellent health.
3. The husband has changed his occupation and domicile. His income is less in his new occupation and the cost of living is more in his new domicile.
There is authority for the proposition that the wife's remarriage, standing alone, would be a sufficient change in circumstances to warrant modification. In Nelson v. Nelson, supra, the court stated:
"The remarriage of a divorced wife does not ipso facto cancel the obligation to pay the installments of alimony awarded her by decree * * *. Nevertheless, it is such a change in the situation of the parties as to furnish the court a cogent reason for modifying the decree * * *. It would not be good public policy to compel a divorced husband to support his former wife after she has remarried, except under extraordinary conditions which she should be required to prove * * *." 181 Or at 499-500. (Emphasis supplied.)
I find nothing in the present record that amounts to proof of extraordinary circumstances by the wife.
Rather than rest on that basis, however, I would simply hold that the wife's remarriage combined with the wife's improved health combined with the husband's worsened economic situation adds up to a compelling presentation of a change of circumstances. The husband *Page 325 is still obligated to pay off the mortgage on the wife's home, but in light of the present circumstances, continuing his obligations beyond the mortgage payments seems unwarranted to me.
For the foregoing reasons I respectfully dissent. *Page 326