This is аn appeal from an order of the District Court of Tulsa County placing a construction on a divorce decree as to child support which had been agreed upon by the parties to the divorce decree and evidenced by a written agreement which was approved by the trial court and incorporated in and mаde a part of the decree as though the same were fully and completely set forth.
Celeste Hicks and C. Tracy Hicks had two minor chidren when Celeste Hicks was grantеd a divorce on November 17, 1961. On said date, the parties entered into a written agreement to “settle and determine their respective rights to property now ownеd * * * by them * * * and to * * * settle and determine their respective rights to alimony and maintenance from each other, and to finally settle and determine any and all other rights, claims and/or obligations which exist, or might exist, by reason of the marriage relation.” As above stated, the agreement was approved by the court and made a part of the decree.
It is paragraphs numbered IV and V of the agreement which become a part of the judgment with which we are concerned.
Paragraph IV provides, among other things not material herein, that Mr. Hicks “binds and obligates himself to pay for the college education of each of the children in the sum of * * * $7662.00 each.” Paragrаph V provides that Mr. Hicks “further agrees to pay child support at the rate of One Hundred ($100.00) Dollars per month for each child during the minority of said child.”
On March 20, 1964, Mrs. Hicks made aрplication for a citation for contempt against Mr. Hicks alleging that he had failed to pay child support as provided by the decree.
This applicatiоn was heard on April 2, 1964, and the trial court found that the decree entered on November 17, 1961, “is somewhat ambiguous and requires construction by this Court.”
The court found that Mr. Hicks had madе certain child support payments and also found that he had paid “an additional sum of $200.00 about March 1st, for the benefit of the older child in college; whereas, that at or about the same time the older child ceased attending college and returned home to reside with the mother.”
The court then determined “that the true intent and meаning of the said judgment was that it ordered plaintiff to pay to the defendant the sum of $200.00 per child each month as child support while such child is attending college and $100.00 per month per child at such times as the particular child is not in college.” The court further found that Mr. Hicks was not in contempt of court and ordered him to pay child support according to the above determination. Mrs. Hicks has appealed to this court.
CONTENTIONS
Mrs. Hicks contends that the trial court erred in its construction of the agreement and decree of divorce; that the college educational benefits and the child support benefits are severable, separate and distinct and the effect of the decree of November 17, 1961, was to order Mr. Hicks to pay $100.00 child support per month per child during their respective minorities; that when the obligations of the pаrties relating to the college educational benefits were judicially approved by the trial court, that court was without jurisdiction to modify the same without the mutual cоnsent of the parties; and that under the terms of the agreement which was approved by the court, Mr. Hicks was obligated to pay the educational benefits while a сhild was in college and in addition thereto, $100.00 per month child support for such child.
Mr. Hicks contends that the obvious effect of the order of November 17, 1961, is that the payment of the college benefits for a child while in college, includes the $100.00 per month support of such child during such time; and that the trial court had jurisdiction to determine whether the judgmеnt of November 17, 1961, required
CONCLUSIONS
It appears that Mr. Hicks paid all the payments required under the judgment of November 17, 1961, if he was not required to pay the $100.00 per month as child support while such child was in college in addition to the $200.00 per month in educational benefits.
To sustain her argument that when thе obligations relating to the college education benefits were judicially approved by the trial court, that such court was without jurisdiction to modify the same without the •сonsent of the parties, Mrs. Hicks states that Elliott v. Dunham,
In the instant action the trial court not only approved the property settlement .agreement, which also includеd the provisions relating to child support, but specifi•cally ordered that such agreement is “made a part of this judgment and decree to the •same extent as though thе provisions thereof were fully and completely set out herein.” In other words, the agreement was incorporated in toto in the decree of divorce and by such incorporation the agreement as :such was extinguished. It necessarily follows that we are not herein concerned -with the jurisdiction of the trial court in a divorce.matter to construe or modify an agreement approved by the court which was not incorporated in and made a part of the trial court’s judgment, but with a trial cоurt’s order which modified or construed a judgment rendered in a divorce action.
It is well settled that a modification of a child support order must be prospective in its аpplication and cannot be retroactive. See Reynolds v. Reynolds,
In considering whether there was a modification or a construction of the judgment of November 17, 1961, we find the trial court found that such judgment “is somewhat ambiguous and requires construction by this Court; that accordingly, the court determines that the true intent and meaning of said judgment was that it ordered the plaintiff to pay * * *” the amоunts heretofore set forth. The remainder of the order is in harmony with the above finding as it discloses that the trial court was merely placing a construction on the judgment and was not attempting to modify the same. The order contains no language whatsoever denoting or indicating a modification. Therefore, we have a question of construction and not a question of modification.
In McNeal v. Baker,
The same trial judge was presiding when the judgment of November 17, 1961, was rеndered, as was presiding when the order under consideration was rendered. We can not say that under the terms of the judgment of November 17, 1961, Mr. Hicks was required to pay the sum of $200.00 in thе form of educational benefits when a child was in college and in addition thereto pay the sum of $100.00 per month child support. We therefore conclude that the trial court’s order placing a construction on the judgment of November 17, 1961, must be affirmed.