Consent Decree

Consent Decree

___Continuing Jurisdiction
   When parties incorporated a property settlement agreement in a decree it became merged therein, and the alimony provided in the agreement became subject to modification from time to time as appeared reasonable and proper.  Page v. Page
   A property settlement, standing alone, is merely a contract between the parties.  One who seeks to vacate only the property settlement provisions in a divorce decree is in the same position as a person seeking to set aside an ordinary contract.  Garmiss v. Garmiss

___Divestiture of Jurisdiction
   When dealing with such matters as grounds for divorce, payment of alimony, and modification of divorce decrees, which are regulated by statute, a court is exercising powers granted by the legislature and cannot be incorporating a contractual provision in its decree divest itself of the power to modify, contrary to the legislative will.  Duval v. Duval

___Effect
   The court has the power to modify a decree or order as to child support and educational payments and there are no exceptions in regard to prior agreements or “consent decrees;” the trial court is not deprived of the power to modify a consent decree. Duvall v. Duvall

___Effect of Amendment
   The 1981 amendment to subdivision (b), adding the language, “unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court”, was not intended to change the law but was instead intended to clarify the law.  In re Arvin
   A marital settlement agreement which predated the 1981 amendment to subsection (c) of this section did not include provision for termination of maintenance on basis of conjugal cohabitation, and therefore there could be no termination on this basis.  In re Arvin
   The 1982 amendment to subsection (b) of this section, is fully applicable to proceedings conducted prior to the effective dates of the amendments.  In re Davis
   The amendment to subsection (b) of this section, which became effective January 1, 1982, was the applicable law on the appeal of a pending case because of the general rule that when the legislature changes the law while an appeal is pending, the reviewing court will apply the law as it exists at the time of its decision, rather than the law as it was at the time of the trial court’s judgment.  Krug-Etheridge v. Krug
   A consent decree will be set aside and vacated where it has resulted from fraud or coercion by either party, or from inequity and unfairness in the terms of the settlement, at least where its execution has been accompanied by some element of coercion or misrepresentation Garmisa v. Garmisa

___Modification Allowed
   The trial court properly concluded that a husband and wife could, under the terms of the property settlement agreement approved by a divorce decree, agree to a modification and that the court could ratify such agreement.  Armstrong. v. Igram

___Trial of Issues
   Where the respondent’s answer to plaintiff’s petition seeking modification of a divorce decree’s property settlement squarely put in issue the basic allegations of the petition, and contained averments which, if supported by the evidence, strongly suggested the absence of any fraudulent concealment, such pleadings raised issues of fact which had to be tried and the trial court’s order granting relief was relief was reversed and remanded.  Wilson v. Wilson

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