Appellant, Woodrow Wilson Mikeska, petitions for a writ of error from a decree *566granted in an uncontested divorce action wherein the trial judge decreed that appellant shall pay $400.00 per month as child support. That same decree incorporated an agreed property and custody agreement wherein the parties mutually agreed that appellant-respondent would have no fixed obligation to pay any specific amount as child support but shall provide for the sole minor child as he chooses and sees fit. For the reasons that follow, we reverse and remand.
Appellee-petitioner, Kelsie Lynda Mikes-ka, filed an original petition for divorce on February 1, 19.78. On April 13, 1978, appellant signed a waiver of citation and on that same date, the parties signed a “Property and Marital Rights Agreement.” No signature by an attorney for either party appears on the agreement.
The divorce decree recites that appellee-petitioner appeared with counsel on April 17, 1978, and that appellant-respondent, having filed a waiver of service, failed to appear either in person or by attorney. The divorce was then granted. The divorce decree was later signed by the trial court on April 26, 1978. Again no signature by counsel representing either party is evident on the decree.
In his one point of error, appellant contends that the part of the judgment concerning child support is so vague, ambiguous, and unintelligible as to constitute error as a matter of law. Appellant complains of the order for appellant to pay the sum of $400.00 per month as child support. The trial court at the same time had specifically incorporated by reference into the decree the property and marital rights agreement which contained the following provision: “Respondent shall have no fixed obligation to pay to Petitioner any fixed amount as child support but shall provide for the child as he chooses and sees fit.”
Amicable settlement by parties to a marriage pending a divorce regarding property rights and custody arrangements should be encouraged, not discouraged, and such agreements will then have whatever legal force the law of contracts will give them. Griffin v. Griffin, 535 S.W.2d 42 (Tex.Civ.App. — Austin 1976, no writ). It is the duty of the court to ascertain the intention of the parties to the contract as disclosed by its provisions and the surrounding circumstances. Boyd v. Boyd, 545 S.W.2d 520 (Tex.Civ.App. — Houston [1st Dist.] 1976, no writ). Where the duty to make support payments arises from an agreement between the parties, rather than being created by a divorce decree based entirely upon the power conferred by Texas Family Code, the rights and obligations of the parties are governed by the rules relating to contracts. Robertson v. Robertson, No. B2103 (Tex.Civ.App. — Houston [14th Dist.] June 13, 1979).
A consent judgment which is rendered pursuant to a written agreement becomes a contract between the parties as well as an adjudication between them. The provisions of such a contract, in the absence of fraud, accident or mistake, should not be set aside or modified except by the consent of the parties. Boyd v. Boyd, 545 S.W.2d at 523.
It is apparent to this court that the trial court by finding such agreement to be fair and reasonable and incorporating it into the final judgment of the court, created a fundamental conflict between the child support provision in the agreement and in the judgment rendering the judgment unenforceable in this respect. The parties intended to abide by the child support provision in the property and marital rights agreement and appellant, in reliance on the provision stated in the agreement, signed the agreement and the waiver of citation. This is patent to the court from the agreement and the waiver.
The child support provision in the decree is vague and ambiguous and unenforceable by contempt. The trial court should take appropriate action to clarify this conflict. We reverse and remand to the trial court for proper action and to clarify the apparent conflict.
Reversed and remanded.