I concur in the conclusion reached in the majority opinion. I do not, however, agree with the reasoning leading thereto.
I said in my dissent in Dexter v. Dexter, 42 Cal.2d 36, 46 [265 P.2d 873], that this court “. . . had an opportunity to clarify the law so that stability might be given to property settlement agreements and agreements for support and maintenance. Not only do the majority holdings in these three cases [Fox v. Fox, 42 Cal.2d 49 (265 P.2d 881); Dexter v. Dexter, 42 Cal.2d 36 (265 P.2d 873); Flynn v. Flynn, 42 Cal.2d 55 (265 P.2d 865)] not settle the law, but they add untold confusion.” I said in my dissent in the Flynn case (42 Cal.2d 55, 62, 67) that the holding of the majority there was an effective trap designed to catch both wary and un*631wary attorneys who were honestly and conscientiously trying to protect their clients’ interests, and that it was “absolutely impossible for attorneys to know whether this court will, years later, determine that there was an incorporation [of the agreement in the judgment of divorce], or order one whether or not it was intended at the time of the interlocutory decree.”
The main, and most vicious, error in this and in the Fox, Dexter and Flynn cases is the holding that the agreement of the parties may now be scrutinized to determine what the parties intended when the agreement was executed—whether they intended monthly payments as an integral part of a property settlement agreement or whether they really intended such periodic payments to be alimony and therefore subject to modification later by that court or by another court. Even one later determination as to the intent of the parties is not sufficient under the holdings in these cases— if an appellate court so desires it may decide that the parties intended the payments to be one or the other, and so on ad infinitum.
In the ease under consideration, we have the majority reversing the judgment of the trial court insofar as it modified the provisions of the “property settlement agreement.” The trial court had concluded that the monthly payments provided for were alimony and therefore subject to modification. The majority here concludes that the monthly payments were an integral part of the property settlement agreement and therefore not subject to modification. The following statement from the majority opinion leads the way to endless litigation between these parties and others in the same situation: “In the absence of conflicting extrinsic evidence as to the meaning of the agreement, the trial court’s interpretation of it is not binding on this court. (Fox v. Fox, 42 Cal.2d 49, 52 [265 P.2d 881]; Estate of Platt, 21 Cal.2d 343, 352 [131 P.2d 825].)” The error in permitting this point to be litigated and relitigated when the parties obviously intended a final and complete determination of their property rights leads to this result: The trial court here concluded that the monthly payments were alimony; the District Court of Appeal concluded that the payments were an integrated part of a property settlement agreement and this court is now also so holding. By its holding, the case is now set at large and there must be a retrial of the matter. *632On the new trial, other evidence may be forthcoming which will have a bearing on what the parties intended when they entered into the agreement. If new evidence is introduced which shows that the parties thought they were providing for alimony or support and maintenance payments for the wife, the trial court may again decide that such payments were alimony and subject to modification; the District Court of Appeal might affirm the holding of the trial court, and it is highly probable that this court might again conclude that such payments were an integrated part of a property settlement agreement and again set the case at large for a new trial. This one issue has already been passed upon by the courts of this state four times—once when the divorce was granted; again by the trial court when the wife applied for an order of execution; next by the District Court of Appeal, and next, but far from last, by this court. This interminable and expensive litigation all stems from the holding of a majority of this court that the question of what the parties intended when they entered into their agreement is one of fact which may be relitigated at some future time.
I have been advised by trial judges from all over the state that they find the rules set forth in the Fox, Dexter and Flynn cases extremely difficult, if not impossible, to apply in the various situations presented to them in actions for divorce. So long as this condition exists, this court will have the added burden of endeavoring to correct the honest errors made by trial courts in this type of case. This situation could be very easily remedied if this court would formulate definite understandable rules to guide lawyers and the judges of the numerous superior courts of this state.
This court has not seen fit to correct its previous errors but, on the contrary, added to the general confusion with its holding in the case under consideration. It is at once apparent from a glance at the signatures on the opinions in all of these eases that trial judges and attorneys are not the only ones who are confused as to the holdings in the Fox, Dexter and Flynn eases. Here, we have Mr. Justice Shenk, who signed Mr. Justice Traynor’s opinions in the Fox, Dexter and Flynn cases, dissenting from his opinion herein. In passing, it should be mentioned that, in my opinion, Mr. Justice Shenk in his dissent correctly applies the rules set forth in the Fox and Flynn cases that the trial court could take extrinsic evidence in aid of its interpretation of the *633agreement and that its conclusion based thereon was supported by the evidence and should not be disturbed on appeal.*
Civil Code, sections 158, 159 and 175, all authorize contracts between husband and wife. Under the statutory law it would be a very simple matter for this court to lay down, understandable and workable rules of law applicable to agreements for property settlement, alimony, and support and maintenance in divorce and separate maintenance cases. Such rules would permit lawyers properly to advise their clients, would permit husbands and wives seeking divorce who are honestly and intelligently endeavoring to make a division of their property, and arrangements for support and maintenance, to do so without fear that such arrangements would be later changed by a trial, or an appellate court. There appears to me to be no sound reason why contracts between such parties should not, in the absence of fraud or overreaching, be given the same stability and dignity accorded to contracts entered into between persons not so related.
The rule of law I should like to see in effect in California in this type of ease is very simple and easy of application. Where the parties have entered into an agreement for a division of their property, or where one has agreed to give, and the other to receive, periodic payments in lieu of a division of their property, or in conjunction with a division of their property, or for support and maintenance, or alimony, the agreement so entered into if approved by the court as fair, just and equitable and not the result of any fraud or overreaching, should be the sum total of the parties’ rights and liabilities and should not be subject to modification unless the parties have expressly provided for a later modification, or unless a subsequent modifying agreement is executed by them.
In a divorce action, when the parties have entered into an agreement involving their property rights, the court should inquire into the facts surrounding the execution thereof to ascertain whether there has been any fraud or overreaching. The court should also inquire into the terms and provisions of the agreement to determine whether it is fair, just and equitable. When the court approves the contract as fair, just and equitable and determines that there has been no fraud *634or overreaching, the matter should be forever concluded and the parties bound by the terms of their agreement.
Stated simply, the foregoing proposed rules mean only this: That the parties have entered into an agreement which the court has approved as fair and equitable and not the result of fraud or overreaching; that such agreement should be accorded the same finality and dignity as contracts entered into between strangers.
If the above rules were in effect in California, the problem of incorporation would also be a very simple one. In my opinion there is no incorporation of an agreement in a divorce decree unless that agreement has been copied therein in haec verba, or its substance is stated therein, or unless a copy of the agreement is attached physically to the decree of divorce and referred to as being a part thereof. When there has been an effective incorporation of the agreement in the judgment, the agreement is merged therein and the effect is to make the remedy one upon the judgment rather than by separate action on the agreement itself. Incorporation should have absolutely no effect so far as the parties’ agreement is concerned. The agreement is a contract and its terms should govern. If the decree orders compliance with the terms of the agreement which has been incorporated in the judgment, the only result should be in the form of remedy available to the party seeking to enforce the judgment. (Plummer v. Superior Court, 20 Cal.2d 158 [124 P.2d 5].)
It is at once apparent that if the above rules had been applied in the instant ease, we would not have the chaos and confusion here present. Here it is evident that the parties intended a final settlement of their property rights at the time the agreement was executed. The holding of the majority here destroys the effectiveness of the agreement solemnly entered into by the parties and leaves their property and rights in a state of uncertainty and confusion.
I would therefore reverse the judgment and order.
In the Dexter ease it should he remembered that the majority, while holding that the trial court could determine the character of the monthly payments involved, affirmed the trial court’s action in sustaining defendant’s objection to the introduction of evidence on that issue.