Both plaintiff and defendant appeal from an order modifying a decree nisi heretofore entered in this matter on August 31, 1948, in which the plaintiff, Charlotte M. Schluter, obtained a decree of divorce against the defendant for desertion.
The petition for divorce filed June 4, 1948, set forth that there were four children born of the marriage, to wit: Frederic Edward Schluter, 22 years; William Everett Schluter, 20 years; John Adolph Schluter, 19 years, and Peter Mueller Schluter, 15 years, and further set forth, that all of the said children were in the custody of the plaintiff and residing with her.
The decree included the following language:
"And it is further ordered, adjudged and decreed that defendant pay to petitioner in full satisfaction of all allowances and provisions for her support and maintenance and of defendant's obligation to furnish such support and maintenance a lump sum of $75,000 in instalments agreeable to the parties, final instalment to be paid on or before October 2, 1950, and regular monthly alimony payments of $250 per month, and the further sum of $750 per month toward the maintenance and support of the children."
This portion of the decree was included therein presumably because it was intended thereby to merge into the decree the terms and provisions of a preexistent agreement theretofore entered into between the parties. The referred to agreement was not in evidence nor was it before the court at the time
of the entry of the decree nisi on August 31, 1948, except that in the plaintiff's testimony before the court, oral reference was made to "an agreement" in the following direct testimony of the plaintiff:
"Q. You and your husband's respective solicitors have come to a settlement agreed to settle incidental matters in connection with property and support and maintenance of the children, have you not? A. Yes, we have.
Q. And under that agreement he is to give you seventy-five thousand dollars ($75,000.00) lump settlement? A. Yes, he is.
Q. Together with alimony of two hundred and fifty dollars ($250.00) a month? A. Yes.
Q. And maintenance and support of the children at the rate of seven hundred and fifty dollars ($750.00) ...