59 Wn.2d 131, ANN FLECKENSTEIN, Respondent, v. ERNEST A. FLECKENSTEIN, Appellant

[No. 35897. Department One.      Supreme Court      November 30, 1961.]

ANN FLECKENSTEIN, Respondent, v. ERNEST A. FLECKENSTEIN,
                         Appellant.*

[1] DIVORCE - ALIMONY - MODIFICATION OF DECREE - POWER OF COURT. The provisions of a divorce decree relative to alimony and support money may be modified on a proper showing, even if the payments were provided for in an agreement between the parties.

[2] SAME - AGREEMENT OF PARTIES FOR FUTURE PAYMENTS - ALIMONY OR PROPERTY SETTLEMENT. Future payments provided for by an agreement in writing can be either alimony and support money or a property settlement, depending upon the circumstances and the intent of the parties.

[3] SAME. It was within the power of a trial court to grant a modification of a divorce decree insofar as it directed the husband to pay a sum of money to the wife in accordance with an agreement of the parties, notwithstanding that the agreement had been termed a "property settlement," where the trial court found, without objection, that the payment was in fact for alimony.

[4] SAME - ATTORNEYS' FEES ON APPEAL - ALLOWANCE - REMAND FOR CONSIDERATION - GROUNDS. Where the record in a proceeding for the modification of a divorce decree revealed that the husband had persistently failed and refused to comply with the original decree and has avoided the service of process upon him so as to delay making the payments required of him by the court, the cause was remanded to permit the trial court to exercise its discretion under RCW 26.08.190 in awarding the wife an additional amount to pay her attorney's fees on appeal.

Appeal from a judgment of the Superior Court for Spokane County, No. 156652, Louis F. Bunge, J., entered November 23, 1960. Affirmed.

Petition filed for the modification of a divorce decree as to alimony. Defendant husband appeals from judgment granting modification.

Ernest A. Fleckenstein, pro se.

Victor J. Felice, for respondent.

PER CURIAM. -

The respondent was granted a decree of divorce against the appellant on March 10, 1960. On


* Reported in 366 P. (2d) 688.

[1] See Ann. 58 A. L. R. 639, 109 A. L. R. 1068, 166 A. L. R. 675,      48 A. L. R. (2d) 277; Am. Jur., Divorce and Separation 733.

 132    FLECKENSTEIN v. FLECKENSTEIN. [59 Wn. (2d)

November 23, 1960, her petition for modification of the decree as to alimony was granted. This appeal is from the judgment modifying the original decree and ordering the appellant to pay the sum of seventy-five dollars per month for a period of three years. Appellant assigns error to the entering of this judgment and contends that the original decree, insofar as it made disposition of the property of the parties, was not subject to modification. RCW 26.08.110 so provides.

However, the respondent did not seek a modification of the decree insofar as it disposed of the property of the parties. The original decree directed the appellant to pay a lump sum of nine hundred dollars to the respondent, and was in accordance with an agreement of the parties, which was termed a "property settlement." However, the respondent's evidence showed and the trial court made a finding that this was in fact for alimony. No error has been assigned to this finding.

RCW 26.08.110, making provision for the granting of a decree of divorce or annulment, reads in part:

". . . Such decree as to alimony and the care, custody, support and education of children may be modified, altered and revised by the court from time to time as circumstances may require. . . ."

[1, 2] The provisions of a divorce decree relative to alimony and support money may be modified on a proper showing, even if the payments were provided for in an agreement between the parties. Millheisler v. Millheisler, 43 Wn. (2d) 282, 261 P. (2d) 69. Future payments provided for by an agreement in writing can be either alimony and support money or a property settlement, depending upon the circumstances and the intent of the parties. Millheisler v. Millheisler, supra; Duncan v. Duncan, 25 Wn. (2d) 843, 172 P. (2d) 210.

[3] The modification sought and granted in this case was not a modification of the property division but of the alimony provisions. The statute authorized the court to grant that modification, and the assignment of error is without merit.

 Dec. 1961]          SHAW v. BROWNING.               133

[4] The record reveals that the appellant has persistently failed and refused to comply with the original decree and has been very expert at avoiding the service of process upon him. This appeal has enabled him to accomplish a further delay in making the payments required of him by the court. In view of these circumstances, we think the trial court may be inclined to exercise the discretion which it has under RCW 26.08.190 and award the respondent an additional amount to pay her attorney's fees on this appeal. The cause is remanded, therefore, for this purpose.

In all other respects, the judgment is affirmed.