¶1dissenting. Applications made of easily stated rules relating to the subject matter before this court in this case and in Armstrong v. Armstrong, 248 Ark. 835 , 454 S. W. 2d 660, have done little to minimize the apparent conflicts in our decisions which the court, speaking through the late Chief Justice Griffin Smith, found so greatly in need of harmonizing.
¶2The cardinal point in making the distinction between the two types of agreement discussed in the majority opinion is the effect of the particular agreement either to retain an independent cause of action on the contract or to merge the agreement into the court’s decree to the extent that it loses its contractual nature. See Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409. The fact that the contract is oral is of no real significance and language that independent contracts are usually in writing in our opinions is merely a recognition of custom. An attempt to adopt a judicial “statute of frauds” cannot be gathered from them.
¶3I am unable to distinguish this case from McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938. There the decree recited:
“… # it appearing to the Court by agreement upon the part of the plaintiff and the defendant that a property settlement has been made, … it is ordered that $25 per week be made to Lida B. McCue as permanent alimony … This decree is based upon property settlement and is a consent decree.”
¶4Here the decree states:
THE COURT FURTHER FINDS that the parties have reached an agreement for the settlement of their property rights and for support, maintenance and alimony which is fair and equitable as between the parties and which should be approved.
¶5Here, as there, there was no real contest, the divorce having been granted on the “testimony” of appellant and her mother’s corroboration. In treating the significance of the word consent in the McCue decree, we said:
To what could “consent” refer except that McCue and his wife had agreed upon what the husband would pay, how it should be paid, and over what period of time? The two could not have the divorce granted in consequence of mutuality, because of statutory inhibition and public policy.
¶6I submit that there is a stronger case here for the independent contract found to exist by the chancellor than there was in McCue. There the decree for alimony was, in its own words, a “consent decree.” No such language appears in the decree before the court. The court in this case merely approved the agreement by which it could not have been bound. See McCue v. McCue, supra. There the decree recited: “… # it is ordered that $25 per week be made to Lida B. McCue as permanent alimony.” Here, there is a total absence of any language directing the payment of alimony or indicating that the parties relied upon the powers of the court for enforcement. Even those words too often mistakenly treated as having occult effect in this regard —“which agreement is hereby incorporated -in this decree” — are significantly missing.
¶7While the transcript does not include the testimony of witnesses and evidence submitted (as recited in the court’s decree) we should not presume that it does not support the court’s findings in this respect.
¶8Our language in the McCue opinion is just as appropriate here as it was there:
We think the decree reflects this situation: The Chancellor required the minimum proof necessary under divorce laws, and in granting the decree exercised appropriate discretion. But in dealing with property rights it appears that the parties themselves, and their attorneys, reached an understanding. The Court had nothing to do with the method by which that result was arrived at. The suggested provisions could have been rejected; but that was not the Court’s purpose of policy nor was it the desire of Dr. McCue. If he and his wife were satisfied, evidence affecting ability to pay was unnecessary; and their agreement became a part of the decree. As to that phase of the litigation the Court relied upon representations. To say that the commitment on Dr. McCue’s part to pay permanent alimony of $25 per week was not his contract, but was due to the Court’s exercise of judicial discretion, would be to warp words and conduct to suit an undisclosed plan — the plan of a husband who told his attorney to proceed with the hearing, procure immediate results, but to stand by for a relief call when the occasion seemed inviting.
That part of the decree modifying the former allowance is reversed, with directions that all delinquent payments be made.
¶9It seems that the Arkansas rule is decidedly a minority rule. See 24 Am. Jur. 2d 787, Divorce and Separation § 670 (1966), Annots., 58 A. L. R. 639 (1929), 109 A. L. R. 1068 (1937), 166 A. L. R. 675 (1947). The general rule is stated at 24 Am. Jur. 2d 787:
Although there is some authority to the contrary, it is the almost universal rule that where a court has the general power to modify a decree for alimony, such power is not affected by the fact that such a decree for alimony refers to, or is' based upon, or even incorporates, an agreement entered into by the parties to the action.
¶10It seems that we have read an exception into Ark. Stat. Ann. § 34-1213 (Repl. 1962) without justification. The judicial hairsplitting that takes place in applications of our rule, decried by the late Chief Justice Smith in McCue, demonstrates the fallacy of our position. It is high time that this state take appropriate legislative or judicial action to eliminate this confusion prospectively by allowing modification of any allowance of true alimony, regardless of its basis.
¶11It is superfluous to add that I would affirm the decree.
¶12See McCue v. McCue, hereinafter cited.