Opinion
No. 75-860
Decided October 28, 1976. Rehearing denied November 18, 1976. Certiorari denied January 3, 1977.
In a dissolution of marriage action, despite the fact that a property settlement agreement was incorporated by reference in the decree, husband sought a reduction in maintenance. From denial of his motion, husband appealed.
Affirmed
1. DISSOLUTION OF MARRIAGE — Property Settlement Agreement — Approved and Incorporated — In Decree — Cannot be Modified — Absent Fraud or Overreaching. In the absence of fraud or overreaching, a property settlement agreement which is approved and incorporated in a divorce decree cannot be subsequently modified, and thus where a husband moved to reduce the amount of maintenance provided by a property settlement agreement incorporated by reference in a dissolution decree, the trial court properly concluded that it had no continuing jurisdiction to modify or set aside the previous arrangement.
2. Dissolution Decree — Stock Language — Retention of Jurisdiction — Ineffective as to Maintenance — Unless Specific Provision. The stock language contained in a divorce decree that the court "retains such jurisdiction of this action as is conferred by law" does not constitute a specific retention of jurisdiction over the subject matter of maintenance payments to the wife, but refers instead to retention of jurisdiction over matters such as custody, child support, and visitation; hence, absent a specific reservation in the decree of the power of the court to modify maintenance, the court has no such authority.
Appeal from the District Court of Mesa County, Honorable James J. Carter, Judge.
Dickie D. Lewis, for appellant.
Richard M. Hall, for appellee.
The marriage of the parties was dissolved on December 5, 1973, and a property settlement agreement was incorporated by reference in the decree. That agreement divided the assets and liabilities of the parties, and obligated the husband to make monthly payments for the "maintenance" of the wife.
In April of 1975, the husband moved to reduce the amount of maintenance. The court, relying on the rule in Lay v. Lay, 162 Colo. 43, 425 P.2d 704, concluded that it had no continuing jurisdiction to modify or set aside the arrangements of the parties for maintenance of the wife, and therefore denied the husband's motion. We agree with the trial court that the payments to the wife are not subject to subsequent modification by the court, and therefore we affirm the dismissal of the motion.
[1] In Lay v. Lay, supra, the Supreme Court stated:
"It is well-established in this state that a property settlement agreement which is approved and incorporated in a divorce decree cannot subsequently be modified, in the absence of fraud or overreaching ( Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946; Zlaten v. Zlaten, 117 Colo. 296, 186 P.2d 583). It is similarly well-settled that a provision in an agreement which obligates the husband to make fixed monthly payments to the wife, where the agreement is approved by the court and incorporated in the decree of divorce, is not subject to subsequent modification. International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264."
Here, the agreement of the parties specifically stated that no modification of any term in the agreement would be valid unless in writing and signed by both parties. There was no reservation to the court of the power to modify the maintenance provision, nor did the court, as a condition of approval of the agreement, reserve the power to modify. Thus, under Lay v. Lay, supra, it may only be modified upon proof of fraud or overreaching, or by the subsequent agreement of the parties, none of which factors are present here. The court was thus correct in ruling that it could not modify the maintenance aspect of the property settlement provision in the decree. Section 14-10-122(1), C.R.S. 1973.
[2] The appellant urges that the stock language contained in the decree that the court "retains such jurisdiction of this action as is conferred by law" constitutes a specific retention of jurisdiction over the subject matter of maintenance payments to the wife. We do not agree. The quoted language refers to retention of jurisdiction over matters such as custody, child support, and visitation since jurisdiction over those items is conferred by law. Section 14-10-112(6), C.R.S. 1973. Under the law of this state, "if a court having jurisdiction of the parties and the subject matter, renders a judgment in which it transcends the power conferred by law, in so doing it acts without jurisdiction . . . ." U.S. National Bank v. Bartges, 120 Colo. 317, 210 P.2d 600. Hence, absent a specific reservation of the power of the court to modify maintenance, it has no such authority.
Judgment affirmed.
JUDGE RULAND and JUDGE VAN CISE concur.