I concur in the views of MR. JUSTICE MORRIS. I realize that there are many cases supporting the views of the majority to the effect that the provision for alimony is contractual and not decretal since it was not actually incorporated in the decree. The very fact that the parties sought and obtained approval of the court with respect to the contract is sufficient, in my opinion, to make the contract, in effect, a part of the decree, at least so far as the alimony feature is concerned.
On the question of the right to modify the decree with respect to alimony, my views are that the court by its approval of the agreement simply held that under the conditions then existing the property settlement agreement and the stipulation as to alimony was reasonable, just and fair. The court might have incorporated the provisions of the contract into the decree, and, had it done so, it could still change the award as to alimony upon *Page 25 a change of conditions, under all the authorities. (27 C.J.S., Divorce, sec. 238(d), p. 986.) Its authority to do so seems to me to be equally clear where the court simply approved the agreement without incorporating it in the decree. The statutory power to modify a decree as to alimony can neither be divested nor modified by contract of the parties. (Hughes v. Hughes,68 Cal. App. 195, 228 P. 675; and see Kastner v. Kastner,90 Colo. 280, 9 P.2d 290.)