concurring in part and dissenting in part.
While I concur in the result, I disagree with the rationale by which the majority arrives at its result. In my judgment, the majority opinion says too much and at the same time says too little. The majority holds correctly that inflation cannot be the sole factor in awarding an increase in alimony, but strongly infers that in the instant case an increase in alimony would be upheld if the trial court had found such to be necessary. At the same time the majority fails to consider appellant’s assertion that alimony should be eliminated altogether based on the unconstitutionality of the then existing alimony statute or alternatively on the ground of lack of need. Lastly, the majority fails to consider the fact that the alimony requirement was but part of a voluntary agreement entered into between the parties, not merged into the decree, hence enforceable as an independent contractual obligation and thus a bar to the court’s authority to either increase the alimony or eliminate it altogether.
In the instant case, the record demonstrates that neither of the parties are impecunious. At the time of the divorce, I interpret the record as indicating that the husband was earning approximately $26,000 per year. At that time the net value of the community property was approximately $210,000. The family home of over 3,700 square feet, located in a view oriented, prestigious neighborhood, was not valued at the time of the divorce, but at the time of the modification hearing appears to be of a value of approximately $125,000. At the time of the divorce the mortgage indebtedness against the house was approximately $24,000; at the time of the modification hearing it was $12,000; and the monthly payments at the time of the modification hearing were $304. It was agreed between the parties that the community home was awarded to the wife subject to the indebtedness which she assumed and agreed to pay. The wife also received all household goods and furnishings, together with two automobiles. Husband and wife were each *742awarded 16,700 shares of Continental Life and Accident Company. The record does not reflect a valuation of said stock at the time of the parties’ agreement, but as of the date of the modification hearing said stock was valued at approximately $5.00 per share. The husband had separate property of evidently substantial value, from which it was agreed that he would transfer to the wife some 700 shares of Albertson’s, Inc. Again, the record does not reflect the valuation of that stock at the time of the separation agreement, however, the stock was valued at approximately $30 to $35 per share at the time of the modification hearing. At the time of the separation agreement two children were minors and the husband agreed to pay support therefor. At the time of the modification hearing all children of the parties had reached their majority.
As of the time of the modification hearing, the plaintiff continued to live in the residence. The trial court found that she was employed as a real estate salesperson earning $2,600 per year. She testified that she needed between $3,500 and $5,000 a month to live on. The trial court found that she possessed assets of approximately $300,000. The record indicates that her stockholdings in Continental have grown to 26,895 shares. She also purchased real property described as a townhouse for $56,-000, on which she has placed a sale price of $85,000. The trial court found that neither of the parties have any obligations for the education of their children, however, plaintiff desires to keep and maintain her residence so she may be able to entertain her children and grandchildren.
On the other hand, the trial court found that because of the “fortitude and business acuity” of the defendant, his assets at the time of hearing were approximately $1,000,-000 in value.
Plaintiff petitioned for an increase in alimony to $2,500 per month. At that time defendant’s gross income was approximately $68,000 per year, on which he paid approximately $19,000 in federal tax. He was also paying plaintiff $10,200 per year in alimony.
Thus, I deem there to be a number of interesting questions raised. Is a wife with the above described assets to be determined so impecunious as to need an increase in alimony? May an ex-wife claim inability to support herself by maintaining her assets of $300,000 in a manner which produces only $5,000 in income? (The assets appear readily marketable and if otherwise invested I would judicially notice would produce income conservatively estimated at $35,000 to $40,000 per year.)
On the other hand, should defendant be required to pay alimony of $30,000 per year from his net income, which is less than $49,000 per year? Should he be required to invade his capital for such increase in alimony when she clearly has no desire to so invade hers?
Should an ex-wife be required to exert herself to obtain and maintain significant employment as a means of supporting herself? In the instant case, the trial court found that plaintiff-petitioner earned $2,600 per year. The trial court also found that plaintiff-petitioner had a “rather vague physical disability” which gives her back pain, but the record reveals such was evidently no impediment to her three-week skiing vacation in Europe or other trips to Spain and the Holy Land.
I would hold, based on the above and putting aside the erroneous trial court ruling based on the impact of inflation, no sufficient evidence has been presented warranting an increase in alimony.
The majority opinion also fails to deal with the issue clearly raised by defendant that alimony, in any event, should be eliminated altogether in that the statute authorizing a court to award alimony to a wife is unconstitutional under the holding of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). There it was held that a statute authorizing alimony only to a wife is impermissibly violative of the Equal Protection Clause of the Fourteenth Amendment.
Putting all of the above aside, nevertheless, what is, in my judgment, the dispositive issue in the case is not touched upon by the majority opinion. Here, prior to the divorce, the parties entered into a settle*743ment agreement which purports to resolve all differences between the parties regarding property division, child custody, child support, alimony, and any future possible obligations between the parties. Therein it is recited that each of the parties were represented by counsel, were familiar with the terms and conditions of the agreement, and recognized it to be fair, equitable and proper. Signatures on the agreement indicate that it was approved by counsel for each of the parties. Therein it is indicated that each of the parties “waives, forfeits and relinquishes” any future right to earnings of the other or any rights of inheritance. Of most importance, however, is the provision of that agreement which indicates the existence of the divorce proceeding then pending in court and indicates “this agreement shall be submitted to the court for approval but not merged as a part of judgment” In the judgment and decree of divorce, it is recited that the agreement of the parties “is hereby ratified, confirmed and approved, but is not merged herein.”
In my judgment, that provision of the decree totally rebuts the argument of McFadden, J., in his special concurrence. The trial court in the original decree clearly and explicitly held that the agreement was not merged into the decree. It would have been absurd for Sullivan to appeal.
A unanimous Court in Phillips v. Phillips, 93 Idaho 384, 386, 462 P.2d 49, 51 (1969), discussed the doctrine of merger, and stated:
“The import of the doctrine of merger is that when a separation agreement is submitted to a court in connection with a divorce action and it is merged into the decree, all provisions are* thereafter enforceable by the court as a part of its decree and may at a later time be modified by the court. If the agreement is so merged into the decree, the rights and duties of the parties are no longer determined by reference to the agreement or contract of the parties, but rather are determined by and enforced through the judgment and the decree of the court.” (Emphasis added.)
I take it that the converse is also true and in the event the agreement is not so merged into the decree, the rights and duties of the parties continue to be determined by the agreement and may not at a later time be modified by the court. As the Court stated in Phillips,
“Using the present facts as an example, it is argued by appellant that she agreed to accept the property division only because of the existence of the alimony provision and while the property division was fair and equitable insolong as the alimony was to be continued ad infinitum, it is not fair or equitable absent the continued alimony.” Id.
In the instant case, it would appear that defendant can clearly argue that his agreement regarding the division of the community property, the wife’s obtention of husband’s separate property and the provisions of child custody and child support were all contingent upon the wife’s acceptance of a maximum of $850 per month permanent alimony and that he would not have agreed to the other terms if the alimony was subject to increase beyond $850. On the other hand, I believe the wife may argue the correlative, i.e., that she would not have agreed to the other terms of the agreement had she known that some time in the future the husband might contend that alimony should be eliminated altogether. In short, it is my judgment, pursuant to Phillips v. Phillips, supra, that the terms of the agreement were integrated and interdependent each upon the other and each constituted consideration for the other. In short, the bargain having been struck, it cannot be undone by either of the parties in the absence of fraud, overreaching or failure of consideration, none of which is alleged herein.
Those same considerations were present in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), and although the existence of such an agreement in Orr did not prevent the court from holding the statute unconstitutional, it was particularly noted in all the opinions that the impact of such an agreement was a matter for resolution by state law in state courts. As stated in the Orr majority, “Thus, it may be that despite the unconstitutionality of the alimo*744ny statutes, Mr. Orr may have a continuing obligation to his former wife based on that agreement — in essence, a matter of state contract law.”
Hence, I agree that the majority has reached a correct result, but I would so hold on the basis that any modification of the alimony obligation is barred by the terms of the contract between the parties. Also, I would reverse the trial court’s award of attorney fees to plaintiff-petitioner on the additional ground that such is barred by the contract of the parties.