I concur in the judgment affirming the orders in this case but I disagree with some of the reasoning leading thereto.
The trial court here entered its order refusing modification of the support provisions incorporated in the interlocutory and final decrees of divorce on the ground that it had no jurisdiction to modify the amount of the payments.
Prior to entering its order, the trial court sustained defendant’s objection to the introduction of evidence on the ground that the rights of the parties were governed by their contract.
The majority here say that: “The trial court had jurisdiction, however, to determine in this proceeding the character of the payments involved, ...” This is inconsistent with its holding that the orders are to be affirmed. If the trial court could determine the character of the payments which were provided for in the agreement entered into between the parties, then it improperly sustained defendant’s objection to the introduction of evidence on that issue, and the case should have been reversed. Not only is the majority opinion in this case inconsistent in itself, but it is inconsistent with
*45the case of Fox v. Fox, post, p. 49 [265 P.2d 881], where it was said: “Plaintiff contends, however, that since the payments were labeled alimony, were to cease on her remarriage, and were subject to modification in the event of a reduction of defendant’s pension, there is evidence to support the trial court’s implied finding that they were solely alimony subject to modification. In the absence of conflicting extrinsic evidence, the interpretation placed upon the agreement by the trial court is not binding on this court on appeal. ...” (Emphasis added.) The clear implication from this is that the character of the payments is a question of fact to be determined by the trial court upon evidence offered by the parties for that purpose. It is admitted that “there has been no previous adjudication in modification proceedings that the monthly payments are alimony. Moreover, the interlocutory decree itself did not purport to determine the character of the payments. It merely ordered defendant to make them pursuant to the terms of the agreement and thus made clear that judgment remedies including contempt would be available for the enforcement of his obligation.”
With the holding of the majority that this was a property settlement agreement entered into between the parties which the court had no power to modify, I agree. It is said that plaintiff “cannot, however, after haying secured its approval by the court and having accepted the benefits thereof, now seek relief inconsistent with its terms.” The factual situation here presented shows that the trial court approved the agreement entered into between the parties in its entirety and ordered that it be performed. It also shows that the support provisions for plaintiff were “pursuant to the terms of said agreement” set forth in the interlocutory decree of divorce which was granted to the plaintiff. The rule in such a case should be that if the entire agreement is approved hy the court and part of its provisions are incorporated in the decree and ordered to be performed, those portions included in the decree may be enforced by contempt proceedings. The balance of the provisions, approved by the court but not incorporated in the decree, may be enforced by separate action. It should also be the rule that where the terms of a property settlement or separation agreement or an agreement for support and maintenance have been approved by the court as valid and enforceable and incorporated in the decree, the court may not, in that action, or in a later action, modify its terms and *46provisions. Once presented to the court, approved by it, incorporated in the decree and the performance thereof ordered, the parties are bound by their agreement with respect to support and maintenance, or alimony, as the case may be.
There are several code provisions (§§ 158, 159, 175) which all grant to the parties the right to contract with each other. In the absence of fraud or overreaching there is no reason why a contract providing for support and maintenance should not be given the dignity accorded to other contracts. A majority of this court accords that dignity to a property settlement agreement which provides for monthly payments but holds that the trial court has power to determine the character of the payments. In the present case that statement is a non sequitur since the majority sustains the trial court’s action in refusing to admit evidence concerning the character of the payments. Where we disagree is that I believe that once the parties have entered into an agreement whether it purports to divide the property, or provide for support and maintenance payments without a division of the property, which is found to be fair and equitable, the subject is forever closed and the parties are bound by the terms of their agreement. Incorporation in the decree has only the effect of making the remedy on the judgment and not on the agreement which has become merged therein. In the event of lack of incorporation, the remedy is on the agreement which should have the same dignity as other contracts.
In these three cases (Dexter v. Dexter, Fox v. Fox, Flynn v. Flynn) 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 not settle the law, but they add untold confusion. The import of the Flynn decision is that an appellate court may order a property settlement agreement, which is not even in the record, attached to a judgment of divorce after that judgment has become final. As I pointed out in my dissent there, there was no adequate incorporation and the parties should have resorted to an action on the agreement itself for the sum and substance of their rights and duties, it having been approved by the court in the divorce action. The import of this case is that the question of the character of the payments involved in the agreement of the parties now merged in the divorce decree is a question of fact for the trial court which it may determine without any evidence on the subject other than the agreement *47itself. This result naturally flows from its affirmance of the trial court’s action in refusing to admit plaintiff’s evidence on the subject. The logical inference, of course, to be drawn from the action of the trial court is that it impliedly considered the agreement to be one of property settlement. Then we have the Fox ease wherein it is said that in the absence of conflicting extrinsic evidence the finding of the trial court on the character of the payments is not binding on an appellate court. If no evidence is necessary, or admissible, then this court, or any District Court of Appeal, may make its own determination as to the character of the payments agreed upon by and between the spouses to the end that litigation in these matters will be endless and the law on the subject will be without any stability whatsoever. As I pointed out in my dissent in the Flynn case, how will attorneys know how to advise, or act for, their clients in cases of this kind? The obvious answer is that they will not have the remotest idea whether to incorporate the entire agreement in haec verba, or in substance, or attach it physically to the decree of divorce or whether, no matter how it is done, the trial court, or any appellate court will not determine that if monthly payments are provided for those payments constitute alimony subject to modification.
Left open in the majority opinions in all three cases, but there by implication, is whether the parties may contract with each other as to alimony, or support and maintenance, where no property division as such is involved. If the parties agree on a certain sum to be paid monthly, or annually, or semiannually, in lieu of any lump sum provision, that agreement, if fair and equitable, should have the same stability as where there has been a division of property by agreement. So far as alimony per se is concerned, if the parties cannot or for some reason do not themselves reach an amicable agreement on the subject, the trial court has the power to make such provision in the decree. In this event, the amount would, of course, be subject to modification under the continuing jurisdiction of the court.' Why the parties should not be able to make a binding agreement for the payment of alimony or money purely for support and maintenance, is not made clear by the majority.
The majority opinion in each of these cases leaves the obvious implication that if such an agreement is incorporated in the decree, its provisions will be subject to modifi*48cation, but if it is not so incorporated, it may not be modified. This implication follows from the majority holding that if the agreement is incorporated, the court has power to determine the character of the payments, that is, whether they are for alimony or a part of a property settlement. Why the difference? Is not a fair, just and valid agreement to pay alimony or support money just as binding as one which also contains provisions for a property settlement? Either agreement could provide for its modification under specified conditions. But in the absence of such provision it would remain unchanged. Why should not such an agreement for alimony alone be binding on the court if it is incorporated in the decree and approved?
My position is that if the parties have agreed to a division of their property, or for support and maintenance for one of them without a property division, and that agreement has been approved by the court as fair and equitable,' whether incorporated in the decree or not, their agreement sets forth the full sum of their rights and obligations and may not be modified without a subsequent agreement made by them. If they have not agreed on support and maintenance, the court .may, upon application, provide for alimony which is then subject to modification under the rules applicable thereto, or if they have not agreed upon a property division the trial court may, on trial of the divorce action, divide the property of the parties in accord with settled principles of law applicable to the ease.
I would affirm the order refusing modification in this case because the parties had, by their agreement, the pertinent provisions of which were incorporated in the decrees of divorce and approved by the court as fair and equitable, set forth their rights and liabilities. With respect to defendant’s appeal from the order granting plaintiff her attorneys’ fees, defendant agreed in the agreement entered into between the parties to pay all attorneys’ fees and costs incurred by plaintiff in any action for divorce which might be filed. The agreement contains no waiver on the part of plaintiff as to any further attorneys’ fees, and the order granting such fees should be sustained inasmuch as any allowance therefor is discretionary with the trial court and there is here no claim of abuse of that discretion.