Helen P. SIMPSON, Petitioner,
SUPERIOR COURT OF The State of ARIZONA, IN AND FOR the COUNTY OF PIMA, and Herbert F. Krucker, Judge thereof, Respondent, and Donald H. Simpson, a/k/a Don H. Simpson, Real Party in Interest.
[87 Ariz. 352] William H. McBratney, Conner, Jones & Murphy by James M. Murphy, Tucson, for petitioner.
Udall & Udall, Tucson, for respondents.
This prohibition proceeding presents the question whether on an application to modify
a divorce decree the superior court has jurisdiction to reduce the support and maintenance payments for the wife where these payments were fixed in a separation agreement which is incorporated but not merged in the decree.
On August 13, 1956, Helen P. Simpson (hereinafter called the 'wife') and Donald H. Simpson (hereinafter called the 'husband'), who were then married but living apart, entered into a 'Property Settlement Agreement' (hereinafter called the 'Agreement') which, among other things, divided the community property and provided that the husband pay to the wife 'as and for her support and maintenance' a fixed sum per month. These payments, scheduled since August 1958 in the sum of $1,350 per month, are to 'terminate only on the death of either party.'
Paragraph 13 of the Agreement provides:
'In the event that an action for divorce is instituted at any time hereafter by either party against the other in this or any other state or country, the parties hereto agree to be bound by the terms of this Agreement and that this Agreement shall not be merged in any decree or judgment that may be granted in such action but shall exist apart and aside from any decree of court and be [87 Ariz. 353] binding upon the parties hereto, provided, however, that nothing in this Agreement shall be construed to prevent any such decree or judgment in any such divorce action from incorporating in full the terms of this Agreement and in order to protect the remedies available to the wife by reason of the existence of a decree of court, husband further agrees that in the event either of the parties shall hereafter institute an action for divorce all the terms and provisions of this Agreement will be incorporated into the decree of court and the husband furthermore agrees that he will not at any time thereafter petition the court for any revision, modification or amendment of such decree.'
On September 13, 1956, the Superior Court of Pima County entered a decree of divorce in an action commenced by the wife, and ordered.
'that the property settlement agreement heretofore entered into between the plaintiff and the defendant on the 13th day of August, 1956, be and the same is hereby approved, ratified and confirmed, and the executed copy thereof attached to this decree of divorce is made a part hereof with the same force and effect as though fully set forth herein.'
On January 15, 1960, the Superior Court, on application of the husband and after a hearing, made a minute entry which ordered that the divorce decree be modified 'reducing the amount of support payments to the Plaintiff [wife] from $1,350 per month to $800 per month.'
Thereafter, the wife petitioned this Court for an original writ of prohibition to restrain the superior court from taking any further proceedings in this matter and to declare as a nullity the order modifying the divorce decree. This Court has heretofore issued an alternative writ of prohibition staying all further proceedings in the superior court.
We hold, first, that a writ of prohibition is a proper remedy herein if the superior court was without jurisdiction to modify the support payments provided in the original decree. Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012; cf. Van Ness v. Superior Court, 69 Ariz. 362, 213 P.2d 899. In Cummings v. Lockwood, supra, a permanent writ of prohibition was issued against the superior court which had revised alimony payments contained in a divorce decree which this Court held could not be modified. The application for the writ was not considered untimely even though the petitioner there, as here, waited until after the superior court had held a hearing and had modified the decree.
[87 Ariz. ...