272 N.W. 185 | N.D. | 1937
On the 5th day of March, 1935, the district court of Divide county, North Dakota, entered a judgment granting the plaintiff a divorce from the defendant. During the pendency of the action the parties entered into a stipulation for a "property settlement" which provided that in event that the plaintiff should be granted a divorce, the defendant would pay the plaintiff "as alimony, the sum of $40.00 per month, from the time such divorce is granted." The stipulation also provided for a division of the property of the parties giving to the plaintiff an automobile and household goods, and to the defendant certain lots in the village of Westhope, Bottineau county, North Dakota. The defendant agreed to pay the costs and attorney's fees of the action. The stipulation contains this provision, "It is further understood and agreed that this agreement shall be filed with the court and shall be used by the court in determining a settlement of the property and fixing alimony should a divorce be granted in this action." At the trial of the case, which was uncontested, the stipulation was marked as an exhibit and introduced in evidence. The court incorporated in its findings of fact the essential portions of the stipulation and found *299 as a conclusion of law, "that the parties are entitled to have settlement of property with alimony to plaintiff in accordance with the terms of their said written agreement," and ordered judgment accordingly.
It appears that the defendant has not made any of the monthly payments provided in the divorce decree since April, 1936. Contempt proceedings were instituted by the plaintiff which culminated in a judgment finding the defendant guilty of contempt for having wilfully disobeyed the decree of March 5, 1935 in failing to make the payments of alimony therein required, and adjudging as punishment therefor that the defendant pay the plaintiff the sum of $200.00, which is the amount of past due alimony and costs, and in default thereof be committed to jail not to exceed sixty days.
Section 4405, Compiled Laws 1913, provides that, "When divorce is granted, the court shall make such equitable distribution of the property of the parties thereto as may seem just and proper and may compel either of such parties to provide for the maintenance of the children of the marriage, and make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects."
The appellant contends that the decree in this case insofar as it provides for the payment of $40.00 per month to the plaintiff, rests wholly upon the stipulation; that even though the stipulation is incorporated in the decree it is nothing more than a contract, and that the decree in this respect is not a judicial determination of the property rights of the parties or the right of support under § 4405; and that since the obligation of the defendant to pay rests wholly on a contract it cannot be enforced by contempt proceedings, and any attempt to imprison the defendant in such proceedings violates the prohibition against imprisonment for debt contained in § 15 of the State Constitution.
It is argued that the facts in this case are substantially the same as those in Sinkler v. Sinkler,
In that case it was held that the district court, in accordance with the agreement of the parties, had intended to and did enter a decree which finally adjusted their property rights and that the court could not several years later modify its final judgment so made except upon grounds on which ordinary judgments might be modified, vacated, or set aside. The Sinkler case does not hold, as the appellant seems to argue, that a decree when originally based as far as the provisions therein for the support of the wife are concerned, upon the agreement of the parties may not be subsequently modified by the court under the provisions of § 4405, supra. The court specifically refrained from passing upon that question and cited a number of authorities holding both ways. See also Dickey v. Dickey,
The stipulation in this case differs from that in the case of Sinkler v. Sinkler,
While the stipulation covers both a division of property and the amount to be paid for maintenance of the wife, it does not show that the "alimony" agreed upon was based upon the surrender of any of her property rights. The decree contains nothing to indicate that the trial court considered that the parties had made a final distribution of their estate as was done in the Sinkler case. On the other hand, it appears that the stipulation was an agreement which was to be submitted to the court for his advice and guidance in exercising the powers vested in him under the statute. The decree lost none of its effectiveness because the court accepted in toto the provisions of the stipulation instead of modifying them as he unquestionably had a right to do. The court, by determining that the stipulation was fair and entitled to be incorporated in the decree, did not deprive the decree of any of its statutory attributes as a mandate of the court. The stipulation does not indicate that the parties intended that the decree in this action might be enforced in any other manner than the usual decree in a divorce action, or that it would lack any of the normal powers of enforcement which a decree rendered under § 4405 might have.
A decree rendered pursuant to Section 4405 requiring the payment of maintenance in a divorce action may be enforced through contempt proceedings. Gross v. Gross,
Appellant also contends that the court erred in finding the defendant in contempt because the defendant has demonstrated his inability to comply with the court's order by making the required payments. Inability to comply with the court order is a defense in contempt proceedings. Nicholson v. Nicholson,
Affirmed.
CHRISTIANSON, Ch. J., and BURR, NUESSLE, and BURKE, JJ., concur. *303