Porter

¶1dissenting.

¶2The majority would allow the parties to do by agreement what a court could not do on its own. It thereby would permit the parties to defeat what the legislature intended. The 1971 judgment for token support was the result of an attempt by the parties to circumvent the limits on the authority granted trial courts by the legislature.

¶3In Johnson v. Johnson, 245 Or 10, 14, 419 P2d 28 (1966), the court said:

“To adopt the suggestions of counsel for plaintiff by making a minimal or token award of alimony for the sole purpose of reserving to the court the power to modify would result in an indirect, if not direct circumvention of the provisions of ORS 107.130(a).”1

¶4In Ward v. Ward, 41 Or App 447, 453, 599 P2d 1150, rev den 288 Or 141 (1979), we said:

“The retention of a token alimony obligation in order to continue the liability for alimony in the event that the recipient becomes needy in the future is factually speculative and procedurally fictitious.”

¶5See also Ash and Ash, 61 Or App 595, 598, 658 P2d 540 (1983); Koch and Koch, 58 Or App 252, 648 P2d 406 (1982); McGee v. McGee, 48 Or App 163, 616 P2d 555 (1980). The teaching of *408those cases is that an award of support must be based on conditions existing at the time of the award.

¶6The majority relies on Pope and Pope, 73 Or App 242, 698 P2d 518, aff’d 301 Or 42, 718 P2d 735 (1986), which holds that the general principle that support will terminate when the dependent spouse remarries, unless the new spouse is unable to provide support, is inapplicable if the parties had specifically negotiated a property settlement. We said:

“Notwithstanding our authority to modify the decree, we perceive no public policy reason for doing so. … We believe that policy considerations support our conclusion to enforce the agreement as written.” Pope and Pope, supra, 73 Or App at 248. (Emphasis supplied.)

¶7Pope finds its rationale in McDonnal and McDonnal, 293 Or 772, 652 P2d 1247 (1982), where the court enforced a property settlement agreement that provided that an award of spousal support for a fixed period of time could be reviewed without the requirement of a showing of changed circumstances. In McDonnal, the court said:

“We do not suggest that a property settlement providing for spousal support may go so far as to preclude the court’s statutory power to modify support even where changed circumstances exist. … However, short of conflict with statutory powers of the court, we recognize the court’s responsibility to discover and give effect to the intent of the parties as reflected in the incorporated settlement agreement.” 293 Or at 779. (Emphasis supplied.)

¶8Both Pope and McDonnal recognize that an agreement of the parties will be deemed subordinate to public policy decisions by the legislature if a conflict between the terms of the agreement and the policy occurs. The relief sought by husband here is governed solely by ORS 107.135. See Grayson v. Grayson, 222 Or 506, 513, 352 P2d 738 (1960). The majority acknowledges that it is the express policy of the legislature in promulgating ORS ch 107 that an award of spousal support be based on conditions existing at the time of the award. (See 100 Or App 403.) Yet, the majority permits wife to use a token award of support made contrary to that policy as a foundation for her motion to modify. By doing that, the majority establishes a dangerous precedent that will provide a springboard for all sorts of agreements to be incorporated into dissolution *409judgments and which will exceed the grant of authority vested in the trial court by the legislature. The result is an elevation of negotiated property settlements above the will of the legislature in a statutory proceeding.

¶9I dissent.