The opinion
Mr. Justice Bakke,
dissenting.
I cannot agree with the opinion of the majority in this case. It holds that the marriage settlement contract entered into between the parties was not incorporated in the decree, and that, therefore, a separate suit may be maintained upon it. The opinion also specifically states that the rule announced in the case of Gavette v. Gavette, 104 Colo. 71 , 88 P. (2d) 964 , is a correct statement of the law.
I propose to show that in so far as there was incorporation of the settlement contract in the decree in the Gavette case, and as there is incorporation of the con *178 tract in the decree in this case, no legal distinction can be drawn.
The request of the parties in this case to have the contract made a part of the decree, and the court’s order thereon is quoted in the opinion.
In the Gavette case, supra, the contract, inter alia, contained the following: “7. It is agreed that upon the entry of the Findings of Fact and Conclusions of Law in the aforesaid divorce case, the terms, covenants and conditions hereto shall be embodied herein and made a part of said Findings of Fact and Conclusions of Law and be made a part of the final decree of divorce of said court, as finally entered herein.” Based upon this agreement, the final decree contains an order as follows: “And it is further ordered, adjudged and decreed by the court that the agreement heretofore entered into by and between the parties in this cause concerning and settling all matters of property rights as between themselves, including the maintenance and support of the parties’ minor child is hereby approved by the court and the conditions, covenants and terms as therein set forth are incorporated in this decree by reference.”
It will be noted that the terms of the contract were not set forth in the decree in the Gavette case, either, and it would seem that the incorporation, by reference, of the contract in the case at bar is more definite and certain than in the Gavette case, because the order here, as noted, is, that “Exhibit ‘A’ be and the same hereby is approved by the court and made a part of this decree.”
In Kastner v. Kastner, 90 Colo. 280 , 9 P. (2d) 290 , there was no order that the contract be made a part of the decree. There was simply a “reference to and approval of” the same.
It may be that this case should be reversed on some ground, but surely not on the one set out in the opinion.