In Re Marriage of Nielsen

*876 Opinion

Reed Emerson Nielsen appeals from an order modifying the support provisions of a judgment of marital dissolution.

Appellant and Ruby Evelyn Nielsen separated in 1972 after 31 years of marriage. The parties signed a property settlement agreement prepared by counsel for wife. The agreement contained a spousal support provision. The agreement was incorporated in the judgment of marital dissolution. On October 20, 1978, wife secured an order to show cause concerning a modification. After a hearing, the court ordered a modification of the interlocutory and final judgments by increasing the monthly support payments to be paid by husband to wife. The present appeal followed.

Husband contends that the court lacked jurisdiction to modify the provision for support because the property settlement agreement was not merged into the interlocutory decree. Prior to the enactment of Civil Code section 4811, 1 the question of whether the parties and the trial court intended to merge a property settlement agreement into an interlocutory decree was relevant to determine whether spousal support payments were law-imposed and subject to modification by the court. Section 4811 makes the…

I concur in the judgment only.

Civil Code section 4811, subdivision (b) provides that any agreement for spousal support “shall be subject to subsequent modification or revocation by court order... except to the extent that any written agreement... specifically provides to the contrary.” Contrary to the majority’s opinion, it does not provide that in order to make spousal support agreements nonmodifiable the parties must use certain magic words nor does it indicate that the language must refer to a court’s power to modify.

The degree of specificity envisioned by the Legislature could not have been made clearer than in Forgy v. Forgy (1976) 63 Cal.App.3d 767 [ 134 Cal.Rptr. 75 ]. Faced with statutory language which was identical to that quoted above and was contained in Civil Code section 139, the predecessor of section 4811, the court stated: “To comply with the non-modifiable provisions of section 139 it is not necessary the parties to a separation agreement state categorically: ‘The provisions of this agreement for support are not subject to modification or revocation by court order.’ To the contrary, ‘no particular magic words are needed’ to provide the exception to…

Reed Emerson Nielsen appeals from an order modifying the support provisions of a judgment of marital dissolution.

Appellant and Ruby Evelyn Nielsen separated in 1972 after 31 years of marriage. The parties signed a property settlement agreement prepared by counsel for wife. The agreement contained a spousal support provision. The agreement was incorporated in the judgment of marital dissolution. On October 20, 1978, wife secured an order to show cause concerning a modification. After a hearing, the court ordered a modification of the interlocutory and final judgments by increasing the monthly support payments to be paid by husband to wife. The present appeal followed.

(1) Husband contends that the court lacked jurisdiction to modify the provision for support because the property settlement agreement was not merged into the interlocutory decree. Prior to the enactment of Civil Code section 4811, [1] the question of whether the parties and the trial court intended to merge a property settlement agreement into an interlocutory decree was relevant to determine whether spousal support payments were law-imposed and subject to modification by the court. Section…