Don Foster PERRY, Appellant, v. Janice Gwendolyn PERRY, Appellee.
No. 47205.
Supreme Court of Oklahoma.
May 4, 1976.
Rehearing Denied June 28, 1976.
551 P.2d 256
IRWIN, Justice.
Dewbre, Shores & Hilbert, by Gary Shores, Oklahoma City, for appellee.
IRWIN, Justice.
Appellant (husband) and appellee (wife) were divorced in 1972, and wife was awarded alimony for support. Wife remarried. Husband commenced proceedings to terminate the alimony payments under the provisions of
The trial court refused to terminate such
Husband contends that alimony for support is terminable under the provisions of
The paragraph in the divorce decree ordering husband to pay alimony to wife contained this proviso:
“It is further provided that pursuant to the agreement of the parties that said alimony payments shall not be dischargeable other than upon the death of the plaintiff herein (wife) notwithstanding provisions of the statute to the contrary.”
The phrase “notwithstanding provisions of statute to the contrary” can refer only to
This Court has on more than one occasion said that a waiver occurs where there is a voluntary and intentional relinquishment of a known right. Archer v. Wedderien, Okl., 446 P.2d 43 (1968); Kirtley v. Kirtley, Okl., 301 P.2d 671 (1956). Furthermore, a right may be waived whether conferred by law or contract. Whitmire v. Zolbe, Okl., 403 P.2d 445 (1965). More specifically, this Court has held that a statutory requirement imposed on the trial court as to the manner in which the property of the parties to a divorce will be divided may be waived. In Mills v. Mills, Okl., 512 P.2d 143 (1973), the Court addressed the contention that
“We hold that since the parties entered into a property settlement negotiated by parties and their attorneys and providing for division of certain properties in less than fee simple estates, that
12 O.S.1971 § 1278 does not apply to render such division void, for such parties have waived their rights to complain and the decree based thereon has long since become final.”
Parties in contemplation of a divorce are free to contract for disposition of their property and for alimony as support. Likewise, the trial court may at its discretion incorporate the agreement of the parties into the divorce decree. Miller v. Miller, Okl., 456 P.2d 113 (1969).
Prior to the amendment of
In amending
We hold that where a husband and wife, in contemplation of a divorce, enter into an agreement concerning the termination of alimony for support, and that agreement is subsequently incorporated into the divorce decree, they waive those rights granted them under
Judgment affirmed.
WILLIAMS, C. J., and DAVISON, BERRY and BARNES, JJ., concur.
HODGES, V. C. J., and LAVENDER, SIMMS and DOOLIN, JJ., dissent.
DOOLIN, Justice (dissenting).
Despite the obvious intent of the Legislature in enacting
Pielsticker v. Callahan, decided prior to the adoption of this statute, is cited by the majority as standing for the proposition a decree providing that alimony payments shall not terminate upon remarriage of wife does not contravene public policy. We do not read it in this manner. Pielsticker was an appeal from a suit to enforce a contract of property settlement and alimony. The Court enforced the contract holding contracts of property settlement under the then existing statutes are not against public policy. With this we agree. In Pielsticker, however, there was no issue of continuing alimony payments after remarriage. This is a matter of public policy which has now been codified into our statutes.
The statute uses the mandatory “shall“. The word “shall” is usually given its common meaning of “must” and interpreted as implying a command. Oklahoma Alcoholic Beverage Control Board v. Moss, 509 P.2d 666 (Okl.1973). It has been held that a statute founded on public interest and prescribing manner in which public interests are to be performed is mandatory and cannot be waived. State v. Smith, 320 P.2d 719 (Okl.Cr.1958). Ordinarily a party to a contract may waive any of its provisions that are for his benefit, but when a statute contains provisions that are founded upon public policy, those to whom it applies are not permitted to waive such provisions. Spruell v. Blythe, 215 Md. 117, 137 A.2d 183 (1957), Heim v. American Alliance Ins. Co. of New York, 147 Minn. 283, 180 N.W. 225 (1920). A statutory right conferred on a private party effecting public policy may not be waived or released if such waiver or release thwarts legislative policy which it was designed to effectuate. Brooklyn Savings Bank v. O‘Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945). Also see Brennan v. Veterans Cleaning Service, 482 F.2d 1362 (5th Cir. 1973).
We agree with the holding of the cases cited by the majority that parties may voluntarily waive a known right. However, none of them deal with waiver of statute. If the provision in the statute were optional and did not affect matters of public policy there would be no doubt Husband waived his right to have alimony terminated. But here we deal with judicial disregard of a statutory expression of public policy, not a waiver of an optional right. No cases are quoted to us wherein such a statutory mandate is waived.
It is the duty of courts to give effect to legislative acts, not to amend, repeal or circumvent them. Champlin Refining Co. v. Oklahoma Tax Commission, 25 F.Supp. 218 (W.D.Okl.1938). A court is not justified in ignoring the plain words of a statute. Twaits v. State Board of Equalization, 93 Cal.App.2d 796, 210 P.2d 40 (1949); Schroder v. Kansas State Highway Commission, 199 Kan. 175, 428 P.2d 814 (1967).
Other jurisdictions support this view. In Miller v. Miller, 317 Ill.App. 447, 46 N.E.2d 102 (1943) the circumstances and statutes were nearly identical to those in our case. The Court held even though a divorce decree provided remarriage should not be a cause for modification of alimony payments, it was proper for the trial court to cancel all alimony payments because the statute made it mandatory upon the court to cancel alimony payments in all cases where recipient had remarried. The provision made a part of the decree providing that remarriage should not affect monthly payments was a nullity. See also Tomkins v. Tomkins, 89 Cal.App.2d 243, 200 P.2d 821 (1940).
We believe the reasoning of the Illinois Court to be the better view, and would reverse with instructions to terminate Wife‘s alimony payments absent some showing of need on her part for their continuance, assuming timely application therefor.
I am authorized to state that HODGES, V. C. J., and LAVENDER and SIMMS, JJ., concur in the views herein expressed.