Respondent and petitioner were formerly husband and wife. Their marriage was dissolved by a judgment of a district court of El Paso County, entered on May 5, 1959, which granted a divorce to petitioner on her cross-action. The judgment also approvеd a property settlement agreement entered into by the parties.
The property settlement agreement was executed by respondent and petitioner on April 29, 1959. It dealt with several matters. Only one provision is of concern tо us in this case. By that provision petitioner agreed to relinquish all right, title and interest in and to the property of respondent in consideration of his agreement to pay her the sum of $15,000, the obligation to be evidenced by a non-interest bearing promissory note. The $15,000 obligation was payable in monthly installments of $50 each for the first eight months and $100 each thereafter until it was fully paid. The first $7,500 of the obligation was to be paid regardless of petitioner’s marital status, but the remaining $7,500 was to be paid only if petitioner remained unmarried. The 1959 judgment found the property settlement agreement to be fair, just and reasonable and ordered it “approved and filed herewith.”
This suit for a declaratory judgment was filed by respondent. He had paid $7,500 on the obligation before he filed the suit. He alleged that the provision in the settlement agreement for payment of the remaining $7,500 “is nothing more than an agreement to pay alimony and is contrary to the law of the State of Texas, contravеnes public policy of the State of Texas, and is void.” He prayed that the court declare “that the conditional $7,500 * * * is unenforceable and void and that the note * * * be declared void.” The trial court denied respondent the relief he sought, and by its judgment the court declared the prop
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erty settlement agreement, the note, and the 1959 judgment approving the agreement to he valid. At the request of respondent, the trial judge filed findings of fact and conclusions of law. Among other things, the trial judge found and concluded that at the time of the divorce respondent received all of the community property of the parties, including $2,500 in cash; that neither the agreement of respondent to pay $15,000, the note for that sum, nor the judgmеnt approving the agreement imposed an obligation to pay alimony; that petitioner had never remarried, and that respondent was estopped to assert invalidity of the instruments. The court of civil appeals reversed the judgment of the trial court. In so doing, however, it did not decide whether the agreement and the note were valid or invalid; it declared only that the portion of the 1959 judgment which approved the provision for payment of $15,000 required the payment of alimony and was void. Tex.Civ.App.,
The declaratory judgment rendered Ly the court of civil appeals does not fully dispose of the questions in the case. For, assuming for the moment that the portion of the 1959 judgment which approved the provision in the settlement agreement obligating respondent to pay $15,000 was, in effect, an order to pay alimony and therefore void, the question still remains whether the contractual obligation is an obligation to pay alimony and equally void. Before a correсt answer to this question can be formulated, we must answer a preliminary question: What is “alimony”?
Courts have ascribed to the word “alimony” different legal meanings, the meaning given usually being attuned to the particular fact situation with which the particular cоurt was dealing. See cases cited in 3 Words and Phrases p. 178, et seq. (Perm.Ed.1953). The meaning which we deem to be correct and which is most comprehensive is found in the following excerpt from 24 Am.Jur.2d 641, Divorce and Separation § 514:
“In the English law the term ‘alimony’ was originally used to signify the allowance judicially granted to a wife for support during a divorce a mensa et thoro [divorce from bed and board] or during separation, but it has come generally, in legal parlance, to include also the provision or allowance, whether periodical or in gross, judicially made to a wife upon an absolute divorce * * *. Consequently, •every provision in a judgment of divorce or separation made solely for this purpose [food, clothing, habitation and other necessaries for support] is to be regarded as alimony, whether expressly designated as such or not, and irrespective of whether it requires payment of money at intervals or in a gross sum * * *. 1
The central idea to be drawn from the excerpt is that to be alimony the allowance to or provision for the wife’s support, whether during pendency of the suit, during a divorce from bed and board (divorce a mensa et thoro), or after an absolute divorce (divorce a vinculo matrimonii), must have been made by a judgment or decree of a court. That this is so finds support in a host of decided cases. Examples: “Generally the term ‘alimony’ is used to designate payments which the husband makes to the wife
under a court order
for her support pending a divorce action or after a divorce has been granted.” Miller v. Miller,
The foregoing authorities exclude the idea that a mere contractual obligation of a husband to make future periodic or lump sum payments for the support and maintenanсe of his wife is a provision for alimony. As a matter of fact, courts of other jurisdictions which recognize and authorize alimony after a divorce is absolute, as the law of this State does not, make a distinction between alimony and contractual obligations. Solomon v. Solomon,
The statutes and public policy of this State do not sanction alimony for the wife after a judgment of divorce has been entered. See McElreath v. McElreath,
From what has been said, it follows that obligations assumed by the husband in separation agreements or contracts to make payments for the suppоrt of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State. The contractual obligation of respondent to pay to petitionеr the remaining $7,500 of his $15,000 obligation and his promissory note evidencing his obligation are, therefore, not void as being in violation of the public policy of this State. Obligations of this type may be void or unenforceable for other reasons but none аre urged here for so declaring.
There remains the question of the validity of the provision of the judgment of May 5, 1959, which approved the agreement of the parties. The provision reads:
“It further appearing to the Court that the parties hеreto have arrived at a community property settlement agreement which the Court has examined and finds to be fair and reasonable and just, the Court hereby ORDERS it APPROVED and filed herewith.”
On the face of it, the provision did not purport to order respondent to pay the sum of $15,000 to petitioner in install-ments after the judgment became final; it merely approved a property settlement agreement which the parties themselves had made. While Art. 4638 directs courts granting divorces to “order a divisiоn of the estate of the parties in such a way as the court shall deem just and right,” it is not the purpose of the statute to proscribe amicable division and settlement by the parties. And if as a part of their settlement the parties agree thаt the husband will make support payments to the wife after a divorce is granted, approval of the agreement by the court should not be held to invalidate it as alimony. Amicable settlement by the parties of their property rights should be encouraged, not discouraged. The agreement will then have whatever legal force the law of contracts will give to it. See Ex Parte Jones,
A number of decisions of courts of civil appeals beginning with McBride v. McBride,
The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.