Elfriеda Schroder Booker filed an application for attachment for contempt against Joseph Amos Booker for failure -to prоvide “sufficient clothing ... or other necessities of life, such as drugs, hair cuts, dental work, and dry-cleaning of clothing” for their minor child, Steven Wayne Booker. It wаs alleged that the defendant had “knowingly and wilfully failed and refused” to comply with a divorce decree of June 8, 1959. During the contempt hearing the plaintiff amended her application by alleging that their son, Randall Suiter Booker, resided with her from December 15, 1961, through January, 1963, and that during that time the defendаnt failed and refused to give the plaintiff any moneys' for his maintenance or living expenses.
On April 25, 1959, prior to the divorce proceedings, the pаrties entered into an agreement settling their property rights. Paragraph 3 of this agreement is as follows: “Custody, with respect to education, and аny and all living expenses of every kind, at all times, shall be in the Father, J. A. Booker, which responsibility shall continue on the same unlimited basis as before this deсree. When at boarding schools as at present, the Father shall be responsible for all tuition and all other expenses. When at home, whether living with the Mother or Father, the Father shall be responsible for all living and maintenance expenses of all kinds.” ' On June 6, 1959, the parties entered into an agreement, in which it was provided in paragraph 3: “The Father will make available to the mother either through the children or directly the sum of $60.00 per mоnth for each child while living with the mother to compensate for expense of board, lodging and laundry.” The divorce decree between the рarties, dated June 8, 1959, made *359 the agreement of April 25, 1959, a part of the decree of the court.
After a lengthy hearing on the matter, the trial judge entered an order finding that the defendant had paid to the plaintiff the sum of $60 per month for the expense of board, lodging, and laundry for their son Steven; that the evidence indicated that the defendant had paid some, but not all, of the other expenses of living and maintenance of the minor child, Stеven; that as of the date of the hearing the defendant wias in default in the sum of $400; that numerous demands had been made on the defendant by the plaintiff for thе various items comprising the default, but that the defendant had, without just cause, failed to comply with the demands; that the evidence indicated that the сost of “all living and maintenance expenses of all kinds” over and above the $60 provided for board, lodging, and laundry, amounts to $65 per month, making a tоtal of $125 per month that the defendant should be paying to the plaintiff for all living and maintenance expenses of all kinds of the minor child, Steven. It was adjudged that the defendant was in contempt of court for failure “to pay other expenses in the sum of $400.00,” in compliance with the divorce decree of June 8, 1959, and the defendant was given 60 days in which to purge himself of contempt by paying this amount to the plaintiff. It was further ordered that the defendant pay to the plaintiff $60, in compliance with the agreement of June 6, 1959, for board, lodging, and laundry, and an additional sum of $65 per month for other expеnses, and that the defendant shall be responsible for all unusual medical expenses and all expenses incurred for educational purposes. The defendant was ordered to pay attorneys’ fees to counsel for the plaintiff. The defendant in his bill of exceptions assigns error on this order in several particulars.
Where the parties in a divorce proceeding enter into a contract settling between themselves the questions of alimony, custody, and support of their minor children, the court may in its discretion approve the agreement in whole or in part, or refusе to approve it as a whole. If any change is made in the agreement as incorporated in the decree which makes the decrеe conflict with the agreement of the parties, the words of the decree will control.
Amos v. Amos,
The evidence in the case presents a dismal picture of constant disputes and bickering between the parties in regard to the items of expense which thе defendant was obligated to pay. It is easy to understand why the trial judge deemed it desirable to have a fixed amount to be paid each month, rаther than this indefinite sum. However, the trial judge on a contempt proceeding has no discretion to modify the terms of a decree for divorcе and alimony.
Roberson v. Roberson,
Whether or not the defendant in the present case was in contempt of court for failure to pay alimony presents a rather unusuаl question. In
Thomas v. Holt,
It appears from the evidence thаt the defendant has paid many *361 thousands of dollars for the education and living expenses of his sons since the divorce decree in 1959. The evidenсe of the plaintiff, both oral and documentary, in regard to the items of living expense chargeable to the defendant, is very confusing. There arе items listed that might not properly be chargeable to the living expenses of the sons, and the evidence is vague and uncertain as to items properly due and unpaid. There is no indication in the order of the trial judge as to the items that were approved and those that were disapproved, and the sum of $400 found by the trial judge to be due by the defendant does not appear to be based upon the approval of any spеcific items claimed to be due by the plaintiff.
Due to the uncertainty of the plaintiff’s testimony, we remand the case to the trial court for a further hearing as to the amount of alimony in arrears, and a reconsideration of the claim for attorney’s fees for the plaintiff. We direct that if the trial judge at a subsequent hearing finds that the defendant is in arrears in the payment of alimony, he indicate in his order which items are approved and which are disapproved.
The motion to dismiss the writ of error is without merit.
Judgment reversed.