Rogers v. Rogers
203 F.2d 61
D.C. Cir.
1953
Check Treatment

*2 . day every and month D. of .each Desmond, Washington, Mr. M. : James n thereafter, provided however C., appel for e l e remarry, in such should the wife MILLER, K. Before WILBUR payments provided for in event FAHY, Judges. Circuit and BAZELON paragraph cease ter- this shall and Judge. FAHY, provided Circuit minate. And further it is shall receive that in the event the wife of an order from appeal is This any in from gainful income amount Dis for the District Court United States income employment, an receive April entered of trict source, any month- the aforesaid appel jurisdiction, of denying, lack for ly payments not be diminished or shall in increase for lant’s motion thereby.” 2) (Paragraph reduced in divorce absolute Judgment for favo.r incorporated in agreement granted had -been wife, appellant, divorce, judgment for absolute prior thereto the Shortly 8, March following words: agreement an into entered parties had payment lump sum Court, for a provided having “The examined assumption $7,000.00, appellant agreement of dated certain memorandum appellant’s of 27, 1951, par- of certain appellee February wherein the furniture, of household debts, respective disposition their ties ap- payment of jewelry, property rights, furnishings and the Court does here- fee, waiver of and 'attorney’s approve the pellant’s confirm and aforesaid all claims any and dower, and courtesy forth agreement if set in externo the other. against might herein, reserving jurisdiction en- each ap- pledge compliance also not Appellant agreed and all force therewith ' provided agreement pellee’s pertaining thereto.” credit. matters part of the divorce be made it should her attached affidavit to her motion In- granted. one was event alimony appellant for increase in stated recital that was a also cluded she unable to and her- was maintain jurisdic- “has been advised had monthly allowance, self out of the and settlements” for provide tion subsequent appellee divorce the “upon the favor with and looks promoted, receiving approximate- had been amicable set- entering into an themselves ly $3,600.00 per more income than annum adjustment of tlement and at judgment. the time There is no of by and claims well as property rights meaning evidence in the record as to the other”, concluding this recital each against than instru- other. “desirous were words ment itself. pur- agreement for that into entering Court, The District holding was another There pose no other”. jurisdiction agree- without however, which the con- around provision, ment, assumption there was no be- centered, as follows: primarily troversy is incorporated agree- 'the court had cause agrees that in husband further “The ment in its decree and had reserved payment pro- aforesaid addition .to compliance therewith”, “to enforce diction hereof, paragraph 1 he for vided jurisdiction it intended to retain also to wife, during her life- will modify it. Fifty time, Hundred of Two sum If, however, per judg month as main- divorce Dollars ($250.00) pay- provided alimony support, the first the District for her tenance jurisdiction grant deny March as of commence ment to Hun- motion increase of Two in its amount. like sum and a 1951;1 16-413, Dollars D.C.Code Fifty ($250.00) § dred where * * * any open case shall considered divorce “After respects. providing (Mar. granting orders in those future 3, 1901, 978.)” custody children, ch. 31 Stat. § care supra. majority ju Moreover, court has such retention risdictions, over agree, hold that with which we “to compliance the award enforce is unaffected fact that therewith and all mat- based on ters *3 court is pertaining sup- thereto” [emphasis agreement parties. Annotation, plied] might indicate that the court deemed 1947, 675, paragraph 166 A.L.R. statement agreement, 676. See 2 when in- Minnesota, of the set forth in cluded in judgment, rule to be a 1, Douglas Willcuts, 1935, 6-8, U.S. for alimony 296 v. which within remained 59, question, 56 S.Ct. 80 L.Ed. 3. court’s jurisdiction. therefore, arises, may be as here stated The question judg whether the agreement incorporated as whether the ment should a grant be construed of ali part judgment pro amade mony depends part para on whether alimony. only prop vides for If it settles graph 2 separable prov from erty rights its inclusion in the isions.2 We being so, think it is. This jurisdiction modify not to confer it. does question, the remaining in the absence 1935, 172, Ettlinger Ettlinger, 3 Cal.2d v. of more light definite from the 540; 1941, Rich, 44 P.2d Rich 44 v. Cal. other than the terms of 780; Ewald, App.2d 526, P.2d Turner 112 v. the agreement, is-whether the intend 1942, 833, 181; Ky. 162 290 S.W.2d Watt paragraph ed 2 as the basis for an Watt, 322, 1942, App. v. 69 Ohio 43 N.E. award rather than part only prop of a 2d erty settlement. Their ap is not intention agreement by Reference to parent agreement from itself, which is settlement, McHan, v. McHan ambiguous regard. Evidence as 496, 984; 1938, 59 84 P.2d Prime Idaho they intended, to what available, might if Prime, 1943, 34, 550, v. 172 P.2d Or. 139 very helpful. If not available support, maintenance must it; of course decide without but we Puckett, 1943, 833, Puckett 21 Cal.2d v. procedure proper think now is to re 1, precluded P.2d has not courts 136 from verse and remand so par as to afford the construing payments be what to opportunity present ties evidence which evidence shows them to be. Even where might pro reveal their intention. This provides agreement periodic pay Lort, supported cedure 1952, Lort v. maintenance and ments for “in 118, U.S.App.D.C. 600, 91 198 F.2d alimony” juris the court exercised lieu of Savings and Baker v. National and Trust Gloth, modify. Gloth diction to v. Co., U.S.App.D.C. 161, 164, 86 181 154 153 A.L.R. Va. S.E. 71 273, 276; F.2d and it is within our au result, judg As the fact that the neither thority (Supp. V, under U.S.C. 28 2106 § says present case 1952). “parties Reversed pro- and remanded for further property rights” nor a similar recital in ceedings opin- inconsistent with this disposes itself the contract case. ion. point descriptions Such in one direction. other, Pointing recites MILLER, WILBUR K. Circuit making monthly pay the husband (dissenting). maintenance for her ments to wife “as I cannot concur in the conclusion of the support,” prevailing accords which majority that Nelson, 2 Divorce definition of “ * ** (2d 1945). 14.02 ed. proper and Annulment procedure § now payments are to cease fact that is to and remand reverse so as to af- also lends remarriage opportunity ford the present See, McHan, alimony theory. might McHan v. evidence which reveal their in- cited; Ewald, supra, cases Turner v. tention.” McHan, supra; Banck v. McHan v. 577; Prime, supra; Prime v. and Gloth Ill.App. 369, Banck, 1944, Gloth, supra. N.E.2d approved parties intended their reserved Whether the part compliance therewith of diction enforce obligation on the tract create an alimony” the mean- “grant did. within seems to me pay 16-4-13, they ing of ,§ D.C.Code because, even immaterial provides: so, could not do intended to obligation their mere created such any “After a decree of divorce , Alimony from arise does agreement. providing granting alimony judicial judgment children, contract but custody the care and it.1 orders the open the case still be considered shall s intention, future in those re orders parties’ So, regardless of *4 pects.” is, did the District question simply the alimony, to order Court He therefore the not have husband held court did the For, the divorce decree if not? jurisdiction, did.it after of the decree divorce the the alimony, trial entered, had been to the awarded alter terms allowance, and change the by later to agreement made the Judge Mor disclaiming in erred said, D.C.1952, F.Supp. 937, Court District ris 109 the 939: hand, so; on to do jurisdiction “Obviously agreement provided not order divorce did judgment of if the parties, for a settlement between the cor- alimony, the court was payment of only upon monthly based, pay not modify later it could holding in not rect provided therein, ments but re arrangement to month- as contractual disposition specting the of property, payments. ly payment lump of substantial sum s, nn legal Conclude foregoing, payment and the of certain indebted From appeal is wheth by certainly this presented It is to question ness. not be assumed approv confirming that, and juris decree because the Court reserved er a divorce settlement, includes agreement, diction to enforce such it a ing husband, by is monthly payments intended to retain to Although change allowance of and The judicial it. conclusion us by before question now reached this Court in the case of considered Equity been time, Woodruff, heretofore Woodruff it has v. No circuit, all 61547, ruling by], judges announced by district three fin Holtzoff, conclusion.2 Judge is to the same effect that the reached of whom case, present Judge deciding could not alter an Court Court, Morris, by parties substantially made in W. James adopted and Similar judgment which same situation.3 action was held * * * 1901, justifies Shufeldt, 181 U.S. ried In Audubon v. conclusion 1. 735, 736, approval 575, 577-578, 45 21 L. the decree was an of S.Ct. Supreme contract, 1009, said: and Court award of Ed. * “* * authority [alimony] is not found- the court had no It because implied, express contract, but award of make an to continue ed on duty legal long single of so unmarried, as the wife remained and and natural obliga- general authority ap- The but did the wife. have by specific prove parties is made a contract between the tion appropriate provision. Maryland taining that of The decree of ** * Appeals ques- Court of a similar decided diction. Dickey reported Dickey, tion * * v. 154 * of the District Columbia “In 675, 387, 388, 141 Md. A. 58 A.L.R. 634.” granted by a court decree of equity.” of Judge opinion did Holtzoff not write an Municipal in the Woodruff case but the question For arisen elsewhere. has North, 1936, the District example, 339 North v. ruling 582, 586, discussed his and made 1226, A.L.R. 109 100 Mo. S.W.2d its own 061, observations Woodruff the court said: 1 Woodruff, awarding From provision A.2d in the “The appears opinion per the divorce so to continue month $500 wife paragraph: single this contained long and unmar- remained she The conclusions reached these three by this Court taken Heckman, judges able seems to me district Heckman v. D.C.[1949] here, Judge sound. of divorce 687, acting through F.'Supp. case, purport Heckman does Pine.” make its order terms case, Pine con In the Heckman monthly payments, no hint contains a divorce following strued the alimony; approves confirms decree: 4 the contract which it describes “whereby adjusted their said having “The Court examined * * * property rights”. September dated Furthermore, possible it were supplement July thereto dated proceeding a divorce to create made between and executed contract agree- award of an1 plaintiff herein, where defendant ment in this case could construed re having so, done its because one of spective property rights claims and all respect monthly payments in- to the *5 alimony, hereby etc., for the Court alimony. consistent with the nature of approves and said contract.” confirms provision The inconsistent that which quote I following Judge Pine’s binds the husband’s estate to continue opinion, D.C.1949, F.Supp. 687, 688: monthly payments after his Since death. “ alimony upon, a court’s based award * * * In the instant case the of, and is an enforcement husband’s did require Court wife, duty common law his pay alimony, only approved but just duty ceases with his death as the agreement by parties ad- support terminates at time. A divorce that justed respective rights their property require decree alimony therefore cannot and ‘all claims for etc.’ The paid by be estate after his husband’s ‘grant- containing no reason, death.5 For that it should alimony,’ ing it cannot ‘be considered supposed that District Court intended open’ for order in that re- a future alimony to award when it confirmed and spect.” approved the obligates contract which ordered, stipulation “Further that said jurisdiction and, among that it had things, said, be, hereby is, and the ratified same page 60 A.2d at 540: sup- “* js (cid:127):= * and confirmed as the contract for port plain stipu- n maintenance, well coun- property agreed lation was a settlement fees, par- sel into entered between the parties and submitted to the ties hereto.” submitting question court of lieu It was the husband’s “motion to The District Court ratified separate order for maintenance” which stipulation and confirmed the as a con- denied, holding Iloltzoff tract for and maintenance. divorce decree did not award stipula- While this did not convert the stipulation signed but confirmed tion into a certain- parties sup- the “contract for ly way validity in no weakened the port and maintenance” entered into be- stipulation as an be- tween parties. Undoubtedly tween the it was Thereafter Mrs. sued Woodruff her parties’ agreement because of the Municipal former husband in the Court alimony.” the court did not award unpaid instalments under con- that, 4. It will be observed in contrast ground tract. Ho resisted case, with the the Heck being her claim was not agree man recites Municipal within adjusted only Judge Hood, speaking Court. unanimous for the property rights their but also “all claims Municipal Appeals, Court of alimony”. Municipal bolding affirmed Court’s Gaines, B.Mon., Ky., Gaines death, estate, after his husband’s STATES. UNITED PALMER v. obligation monthly payments tinue the —an No. suit, enforced, at the wife’s would I against husband’s estate. the deceased United States representa- personal suppose the husband’s Circuit. contempt should held in tive could not be Argued 21, 1953. Jan. payments. monthly he fail to make the 19, 1953. Feb. Decided Moreover, the con parties recited in making it: de purpose in their tract “into amicable settlement sired to enter respective property adjustment of their against

rights, as as claims well added.) And (Emphasis other.”

each

court, approving the ar affirming d as be the contract rangement, describe

ing “wherein rights,”

their

said. sure, of a contract

To be the nature solely by the label

not determined But, contracting give it. when purpose,

parties emphatically state *6 comport

when the terms purpose fully, and when the purpose, is no recognizes there submission of evidence to invite the

need something intended else consist-

with which their is not intended,

ent; and that the trial court inappropriate purpose,

terms an award of it did

make

not make. judgment re- language jurisdiction to enforce contract

tains regarded surplusage

should If allowing

event. the court was unnecessary, kept

it was because the statute open; contract, ju-

approved the the recital that give being

risdiction retained did performance to enforce contempt summary pro-

through or other course-express

ceeding; retention require compliance added general juris-

nothing to the District Court’s at suit to enforce contract

diction opinion, my the Dis-

trict should be affirmed.