This аppeal is from an order modifying a divorce decree by reducing monthly payments due appellant by appellee for the support of their 8-year-old son.
In a decree entered January 17, 1949, appellant was granted a divorce from appellee and given custody of their son. She was also awarded $100 per month for the support of the child. Shortly prior to the entry of the decree, the parties entered intо a written ‘ ‘ Stipulation and Property Settlement ’ ’ in which appellee agreed, among other things, to pay $100 mоnthly for support of the child. The agreement also provided that in the event of a divorce, the'partiеs “respectfully request that the court approve this stipulation and that the terms hereof be incorporated into the final decree. . . .” The written agreement was never filed with the court, nor was it expressly incorрorated or referred to in the decree. However, the decree did provide for alimony and supрort payments in the amounts set out in the prior agreement of the parties. On September 25, 1952, appellеe filed a petition pursuant to Ark. Stats., § 34-1213, to modify the decree of January 17, 1949, by reducing the monthly support payments for the child.
Appellant first contends the chancellor was without authority to modify the decree becаuse it was based on the prior agreement of the parties. Our cases hold that where a decree fоr alimony or support is based on an independent contract between parties which is incorporаted in the decree and approved by the court as an independent contract, it does not merge into the court’s award and is not subject to modification except by consent of the parties. Pryor v. Pryor,
There is a second type of agreement in which the parties merely agree upon the amount the court should fix by its decree as alimony or support, without intеnding to confer on the wife an independent cause of action. This type agreement becomes merged in the decree and loses its contractual nature so that the court may modify the decree. Holmes v. Holmes,
Since the agreement in the instant case merely requests the court’s approval and was'not mеntioned in the decree, it must be concluded that it was merely advisory to the court in fixing the support payments and was not intended as an independent contract to make such payments. Moreover, the power of a court to modify a decree for the support of minor children cannot be defeated by an agrеement between the parents even when the agreement is incorporated in the decree. 27 C. J. S., Divorсe, § 322a. Although the court may adopt the agreement of the parents and incorporate it in the deсree, it still has the power to modify the decree when it shall be made apparent that changed cоnditions make a modification necessary. Kriedo v. Kriedo,
A more serious question is presented in determining whether therе is sufficient proof of changed conditions since the decree to warrant a reduction of the monthly support payments from $100 to $65. We have held that the amount allowed for child support is subject to modificatiоn when required by the changed condition of the parties by increasing or reducing the amount according to thе necessity of the one and the ability of the other party. Watnick v. Bockman,
Both parties have remarried since the decree. Appellee now has a young stepdaughter to support, while appellant’s present husband has two children by a priоr marriage, and they have one child of their own. Appellee’s income at the time of the divorce is not shown, but he has since been promoted to the rank of captain in the United States Army with a monthly income of $489.25. Aрpellee ’s only other financial change seems to have come about by his second marriage аnd his conversion to the Christian faith which entails payment of a tithe of $48 a month. As the child of the parties has grown оlder, the expense of his support has increased, and it does not appear that appellant’s financial condition has improved materially since her remarriage.
While the original consent award may have been higher than the circumstances then warranted, we are of the opinion that there was insufficiеnt showing of such changed conditions since the decree as would warrant a reduction of the monthly paymеnts. The trial court’s finding in this regard is, therefore, reversed as being against the preponderance of the evidence. The cause will be remanded with directions to reinstate the monthly support payments-of $100 with all costs adjudged against appellee. In all other respects, the decree is affirmed.