dissenting.
The majority holds that husband is precluded from bringing an action for breach of contract, because the property settlement agreement has merged into the judgment. The facts in wife’s affidavit constitute a concession that the doctrine of merger does not apply. Therefore, I respectfully dissent.
The doctrine of merger does not apply when a property settlement agreement provides for the “performance of a future act and not a present obligation for the payment of money.” Waterman v. Armstrong, 291 Or 551, 559 n 7, 633 P2d 774 (1981). The relevant provision of the property settlement agreement here provides:
“2. The parties’ family home located at 245 N.W. 338th, Hillsboro, Washington County, Oregon, shall become the sole property of the Wife, subject to the balance owing thereon to the State of Oregon, Department of Veterans Affairs, which Wife shall pay and hold Husband harmless therefrom, and further subject to a lien in favor of Husband in the amount of $18,000.00, which lien shall be payable upon the happening of the earliest of the following events:
“a. Sale of the property.
“b. Wife’s remarriage.
“c. When the property is no longer used by the Wife and the parties’ minor children as a family home.
*471“d. When the Husband’s obligation to pay support for the last of the parties’ children terminates.
“Husband’s lien shall bear interest at the rate of 6 percent per annum.”
With respect to the property settlement agreement, wife says, in her affidavit:
“The property settlement agreement did not require that I pay to [husband] $18,000 nor did I agree to [husband] being granted a personal judgment against me for $18,000. * * *
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“I did not ever agree that I would be personally responsible to [husband].”
I would take wife at her word. According to her, the property settlement agreement did not obligate her personally to pay husband $18,000, plus interest, and, therefore, he never had a judgment against her for the payment of money. Under wife’s theory, there was no “present obligation for the payment of money”; therefore, the doctrine of merger is not applicable. In the fight of wife’s concession that the doctrine of merger does not apply, the affidavits filed by the parties create questions of fact regarding their intent under the property settlement agreement. I would hold that it was error to grant the summary judgment.