194 N.W. 817 | N.D. | 1923
Lead Opinion
Tbis is an appeal from a judgment and an order of tbe district court of Ward county, dismissing contempt proceedings against tbe plaintiff and respondent and modifying an original order and decree of divorce.
On May 19, 1916, E. R. Sinkler commenced a divorce action against Curly Sinkler, bis wife. Answer was in due time interposed, denying tbe charge and asking for temporary alimony and counsel fees. On tbe 23rd of March, 1917, tbe defendant in tbe divorce action served an amended answer on tbe plaintiff therein and a cross-complaint alleging desertion, praying for absolute divorce, tbe custody of tbe children and for other relief. On tbe same day, plaintiff answered tbe cross-complaint, denying the allegations thereof generally. On tbe 23d day of March, 1917, tbe action was beard in Ward county. On that date tbe plaintiff and defendant entered into a contract effecting a settlement of their property rights in view of tbe pending divorce action and tbe possibility of a decree. By tbe terms of tbis agreement, tbe defendant in that action released all her interests in the real property of tbe plaintiff; tbe plaintiff agreed to pay to tbe defendant, in tbe event of a divorce, tbe sum of $300 when tbe decree was signed and tbe further sum of $250 to tbe counsel for tbe defendant; plaintiff agreed that bis wife should have as her absolute property certain specific personal property; and be would pay her $225 monthly during the term of her siatural life “as and for permanent alimony.” Tbe defendant, in consideration thereof, agreed to support tbe children and keep a home for rhem without charge to them until they should be twenty-five years of age. It was further, in effect, stipulated that tbe agreement should be construed as a confession of judgment if tbe husband defaulted in any payments and that judgment might be entered in tbe district court of Ward county for each and every instalment in default upon tbe affidavit of Mrs. Sinkler stating tbe amount due and unpaid, which affidavit
On the 23d of March, 1917, the court made findings of facts and conclusions of law generally in favor of Mrs. Sinkler for a divorce on the ground of desertion. The sixth finding is hereinafter set forth. The fifth conclusion of law is as follows:
5. “That as permanent alimony the defendant should-be awarded the sum of $300 payable upon the entry of this decree (and the further sum of $250 as and for counsel fees) and the further sum of $225 for each and every month during the life of the defendant, payable on the first day of each month, commencing with the first day of April, 1917, said monthly payments should not be increased or diminished at anj-' time or by any court upon the application of either party pursuant to the written agreement of the parties of said action, fixing said alimony.”
On the 23d of March judgment was entered in conformity with the finding and the order of the court.
The plaintiff paid the defendant, according to the agreement and the decree, the sum of $300 and $250 to her counsel. Certain other payments were made, but plaintiff defaulted during the years 1921 and 1922, and, acting under the stipulations in the contract, judgments were entered against the husband in AVard county on July 12, 1921 for $525.25, and on December 27, 1921, for $934.82. Executions were issued thereon and levies made on real property of the plaintiff.
On the 17th of January, 1922, the plaintiff being still in arrears under the decree, Mrs. Sinkler applied to the district court for an order
On the 26th of January, on the return day, the defendant replied to the plaintiff’s affidavit, denying generally the allegations of inability made by the plaintiff and asserting that the original decree was based upon a contract fairly entered into and setting up other facts not necessary to detail here.
Upon the affidavit and moving papers aforesaid, the matter was heard on April 28, 1922, and the court made its order dismissing the contempt proceedings and modifying the original decree so as to release the plaintiff from the obligation to pay defendant $225 per month during her natural life and permitting and directing plaintiff to pay instead the gross sum of $6,000, in full as settlement of property rights between the parties. The court found that, because of adverse financial conditions, the plaintiff was unable to earn enough to make payments in accordance with the original decree. The gross sum of $6,000 ordered to be paid included the amount of the two judgments heretofore referred to.
On this order of the court judgment was duly entered on the 21st •of June, 1922 and Mrs. Sinkier, in this appeal, challenges the correctness of the order and of the judgment.
Our statute, § 4405, Oomp. Laws 1913, gives the court control over-divorce decrees, and the authority to modify judgments in divorce actions. The statute reads as follows:
Section 4411, Comp. Laws 1913, provides that either husband or wife may enter into contracts with the other and with other persons respecting property to the same extent as if unmarried. After marriage, the wife has the same rights with respect to property, contracts and torts as before marriage. Section 4412, Comp. Laws 1913, gives husband and wife the power to contract with reference to maintenance during separation.
The right of husband and wife to contract with respect to the division of property in the event of a divorce has also been recognized by the courts. The contract entered into in this case would be enforceable in equity between the parties if not incorporated in the decree. Nelson v. Vassenden, 115 Minn. 1, 35 L.R.A.(N.S.) 1167, 131 N. W. 794. The rule is that agreements respecting property rights, the divorce proceedings be pending, are not void as in contravention of good morals or public policy unless their purpose or effect be in some way to facilitate divorce proceedings. Burgess v. Burgess, 17 S. D. 44, 95 N. W. 279; Ward v. Goodrich, 34 Colo. 369, 2 L.R.A.(N.S.) 201, 114 Am. St. Rep. 167, 82 Pac. 701. Such agreements, when reasonable, when fairly entered into, without fraud or misrepresentation, while they are carefully scrutinized by the courts, are, when confined to the adjustment of property rights, binding and will be enforced. Amspoker v. Amspoker, 99 Neb. 122, 155 N. W. 602; Phillips v. Phillips, 39 R. I. 92, 97 Atl. 593, 12 L.R.A.(N.S.) 848, note; Nelson v. Vassenden, supra.
In the Vassenden Oase, Judge Simpson, speaking for the supreme court of Minnesota, says that it is desirable that the parties submit the contract to the court for approval because they are thereby relieved latex” from the necessity of proving that the contract was fairly entered into
The primary question in this case is whether the district court had power to modify the decree of divorce entered in 1917, under all the facts and circumstances of the case; the correctness of the order vacating the contempt order is also challenged.
It is not to be doubted that the court, under the statute and regardless of any contract of the parties to the contrary, at all times retains control of the decree of divorce insofar as the rights of children are concerned. The court likewise may relieve the parties from contempt, if the circumstances require. The trial court, in the exercise of a sound discretion, had the right to relieve Mr. Sinkler from contempt in this case. In this respect no error was committed.
Whether contempt proceedings may, under any circumstances, be maintained against Mr. Sinkler, in view of the stipulation of the parties, on which the decree is founded, and the availability thereunder of the remedy of execution, we do not now decide. That question is not necessarily involved. That question must be answered in the light of the facts and circumstances when it is properly raised.
In construing a judgment, effect should be given to every word and part of it; of two possible interpretations, that will be adopted which will harmonize with the facts and the law of the case, and which renders it more reasonable, effective and conclusive. A construction acquiesced in by the parties will not be changed without good reason. A judgment should be interpreted with reference to the findings of the court; and if the judgment be ambiguous, recourse may be had to a duly executed stipulation of the parties. 23 Cyc. 1102, 1103; Thayer v. McGee, 20 Mich. 195. With these principles in mind, it becomes necessary to refer to some of the facts bearing upon the intentions of the parties and the real purpose the court intended to accomplish by the decree.
The contract between the parties upon which the award of permanent alimony, so-called, is based, clearly indicates an intention to adjust finally all the property rights of the parties to- the marriage. The contract, in the preamble thereof, recites that the parties have made and intend thereby to make a “full and complete settlement of the property rights between the plaintiff and defendant.” It is further agreed in the contract that the wife shall convey to the husband her interest in specified real property in Minot and also some farm land. The contract further provided that the wife slumld receive certain specified personal property, namely, all of the furniture in the so-called “Sinkler Flat” in Chicago; the husband also agreed to pay in cash the sum of $550 and in addition $225 per month during the life of the wife. The wife, in turn, agreed to maintain a home for the children where they might live without expense to them until they arrived at the age of twenty-five years. Simultaneously with the making of the contract and the decree of the court, the wife conveyed all her interest in the real property described in the contract and she has at all times since maintained a home for the children of the marriage without expense
The court in the findings of fact found as follows:
6. “The court further finds that the property rights of plaintiff and defendant have been adjusted between them by a written instrument duly executed by both plaintiff and defendant and that such adjustment of properly rights between said parties is hereby ratified and confirmed by the court and that the provisions hereinafter set forth as to permanent alimony, counsel fees and suit money is based thereon.”
In the order for judgment the court, further following the contract, says: “Said monthly payments should not be increased or diminished at any time or by any court upon the application of either party, pursuant to the written agreement of the parties to said action, fixing said alimony.” The parties to the contract attempted to waive the right, if any, to apply to the court for a modification of the decree, insofar as the adjustment of property rights was concerned. If the stipulation be construed as a waiver by each party of the right to ash to have the decree modified in this respect, would it be competent for them to do so? See Compton v. Compton, 111 App. Div. 923, 97 N. Y. Supp. 618; would it be in any manner an attempt to oust the courts of jurisdiction? See Palmer v. Lavers, 218 Mass. 286, 105 N. E. 1000. The parties had submitted the contract to a court of competent jurisdiction and obtained an approval of the same. • They had had their day in court and it may be doubted if this stipulation is not binding as a waiver by both parties of asserting the right of review as far as the property settlement is concerned. Children, of course, coidd not be affected. We do not decide what the effect of this stipulation is, however, as it is not necessary in the view we take of the case. In any event, this stipulation, in the interest of repose, is some evidence that the parties themselves intended to effect a complete property adjustment and distribution. See 3 C. J. 661, 662, and note.
The decree followed the findings and the conclusions in all material and substantial particulars.
It seems clear from the foregoing statement of facts that the parties intended to adjust finally and fully all property rights and settle all claims arising out of the marriage relation. It is clear, also, that
Under § 4405, the court may, when divorce is granted, (1) equitably distribute the property of the parties, no distinction being made between real and personal property; (2) compel either party to provide support for the children of the marriage; and (3) make a just allowance to the other party for support, during life or for a shorter period. It is, therefore, clearly the duty of the court, when proper foundation is laid in the pleadings, supported by legally sufficient proof, to distribute equitably the real and personal property of the parties to the marriage. Such portion of the decree, however, is not, in any proper sense, alimony. Our code does not use this well understood “term of art” (Calame v. Calame, 25 N. J. Eq. 549) except in §§ 4402 and 4403, in dealing with support, maintenance or suit money, during the pendency of the divorce proceeding. Alimony is the allowance made to a woman for her support “out of the husband’s estate.” Bl. Com. 441. It is not to be understood as involving a distribution of the estate by force of law. Bouvier’s Dist. title “Alimony.” “A decree for alimony must secure to the wife an annuity or other personal right to maintenance. An absolute right to property cannot be decreed in a case for alimony.” Maguire v. Maguire, 7 Dana, 181.
It seems clear, therefore, that a decree under § 4405, distributing
When a court decrees a distribution of the real or personal property-other than money — of the parties, a different situation is presented. It may, and usually will after the lapse of time, become impracticable and often utterly impossible for the court to modify the decree in this respect. Neal property is convoyed or encumbered; personal property is wasted, transferred or completely dissipated. A redistribution of property, under such circumstances, becomes not only theoretically difficult, but practically impossible. The courts have, therefore, held, notwithstanding statutes giving control over the decree with right to modify the same, that a judgment decreeing specific real property or finally distributing the estate, is a final judgment and cannot be modified, except, of course, in the same manner and on the same grounds as other judgments. 19 C. J. 272, and cases cited.
The supreme court of Nebraska in the case of Beard v. Beard, 57 Neb. 754, 78 N. W. 255, says:
“The alimony awarded the wife in this divorce suit was a sum in gross meant, and intended by the court, to be in lieu of her dower, homestead, and all her other rights and claims against the property of the husband. It was, in effect, a decree awarding the wife a money judgment for her share of the common property of the husband and wife upon the dissolution of the marriage; and where the court granting the divorce awards the wife a homestead, or other rights in the husband’s property, and adjourns sine die, such judgment becomes a positive, final, and conclusive one, and cannot be changed or modified after the term at which it was rendered, except for the causes and in the same manner that other judgments may be modified.”
The statutes of Nebraska at the time gave the court the power to modify the divorce decree as to alimony or other allowance for the
Both sides presented elaborate and able arguments upon the right of the court, under § 4405, to modify the decree when originally based, as far as the provisions therein for the support of the wife are concerned, upon the agreement of the parties entered into without fraud, collusion or undue influence. This interesting question we find it unnecessary to decide. In some, at least, of those jurisdictions where the right to modify the decree entered upon agreement of the parties as to support of the wife, is held to exist, such power of subsequent modification is denied when the judgment decrees real property or is a final adjudication of property rights. This appears in the citations of authorities heretofore made. Some of the authorities cited as tending to support the view that such power of modification does not exist when the decree, with respect to the provisions thereof for the support of the wife, is founded on a valid contract, are as follows: Henderson v. Henderson, 37 Or. 141, 48 L.R.A. 766, 82 Am. St. Rep. 741, 60 Pac. 597, 61 Pac. 136; Pryor v. Pryor, 88 Ark. 302, 129 Am. St. Rep. 102, 114 S. W. 700; Storey v. Storey, 125 Ill. 608, 1 L.R.A. 320, 8 Am. St. Rep. 417, 18 N. E. 329; Julier v. Julier, 62 Ohio St. 90, 78 Am. St. Rep. 697, 56 N. E. 661; Stanfield v.
We are, therefore, of the opinion that the decree of the court entered in 1917 was in fact, and was intended by the court and understood by the parties to be, a final adjustment of their property rights to the same extent as if a gross sum or money judgment had been awarded, or a general distribution of the estate had been made, and that the court is now without power to amend the decree and to wipe out the monthly payment stipulated to the wife and substitute a gross sum therefor.
The judgment of the trial court is reversed and the case is remanded with direction to proceed in conformity with this opinion.
Concurrence in Part
(partly concurring; partly dissenting). This cause was argued and submitted before this court on October 4th, 1922. This court, as then constituted, in December 30th, 1923, through an opinion of the Honorable George M. McKenna, district judge, sitting in place of Mr. Justice Grace, disqualified, rendered its decision. It ordered that the order and judgment of the lower court so far as it related to a modification of the original decree of divorce entered on the 23d day of March, 1917 be reversed; that the appellant recover costs on this appeal and such additional sum as suit money and attorneys’ fees as the trial court in its discretion may award. The writer, together with another associate justice, then specially concurred in the decision then rendered. This special concurrence was as follows: “I am of the opinion that the contempt proceedings upon the record were within the sound discretion of the trial' court and should not be disturbed. I am further of the opinion that upon the record the judg
Pursuant to a petition, this court, as now constituted, on Jan. 30th, 1 923, ordered a rehearing which was had on Peb. 10th, 1923.
I adhere to my. conclusions, heretofore presented. I desire to supplement the same as follows;
In May, 1916, plaintiff instituted an action for divorce. In July, 1916, defendant answered asking for dismissal. On March 23d, 1917, defendant, in an amended answer, set up a cross-complaint. Then, the parties made a written agreement concerning settlement of their respective property rights. Therein, the defendant wife agreed to convey to the plaintiff husband certain real property in Minot. It was agreed that the wife should retain the household furniture in a flat in Chicago. Plaintiff agreed, upon the signing of a decree of divorce, to pay defendant $300 and $250 attorneys’ fees and thereafter $225 monthly (hiring the life of defendant as permanent alimony. Defendant agreed to maintain a home for three children, the issue of the marriage. It was further stipulated and agreed that neither party shall at any time apply to any court to either decrease or increase such alimony. That, in the event of default, the agreement should stand and be construed by the court as a confession of judgment on plaintiff’s part and that judgment might be rendered for each and every installment of alimony due and unpaid upon the affidavit of defendant stating the amount so due and unpaid, and thereupon such amount should become a lien upon all property of plaintiff. It was further agreed that,, in the event that judgment should be entered in defendant’s favor, the court should decree, in full of all claims -against plaintiff’s property, permanent alimony to defendant in the sum of $225 payable monthly, and such decree should continue the provision that the parties to the action had agreed upon the amount of such alimony and that they further had
In 1921 defendant instituted proceedings to recover judgments for the alimony then due. Judgments were entered, in June 12th, 1921, for $525.25 and, on December 27th, 1921, for $934.82. An execution was issued upon the first judgment and levy-made upon some 200 acres of plaintiff’s land. The same was sold and sheriff’s certificate issued to defendant. On Jan. 17th, 1922, defendant made application for an order, to show cause why plaintiff should not be adjudged to be in contempt. In response thereto plaintiff moved the court for an order modifying the original decree. As grounds therefor, he alleged that he was practically insolvent and unable to pay his debts; that by reason of the financial stringency he had been unable to earn as much money as formerly. He submitted a property statement showing that he owned some 520 acres of farm lands, mortgaged for $6,800 wherein his equity was about $2,500; also that he owned three dwelling houses in Minot in which he had now an equity of about $2,500. He further
Defendant, before this court, challenges the order and judgment of the trial court upon three principal grounds:
(2) That, in any event, it had no authority to modify such decree, not attacked upon grounds of fraud or other equitable grounds.
(3) That, in any event, the trial court erred, upon the record, in awarding a lump sum of $6,000 instead of the monthly alimony fixed in the original decree.
In my opinion it is unnecessary to consider or determine the question, concerning which there is a divergence and variety of authority, namely, whether the court, in any event, has the power to either increase or decrease the permanent alimony awarded in' the decree; Plaintiff is an able lawyer who has been successful financially at the Bar. At the time when the decree was rendered he was enjoying, comparatively considered, a large and lucrative practice. This continued, in varying degrees, until about the years of 1921 and 1922' when payl ments to his wife practically ceased. Until that time the financial ability of-the plaintiff to pay the award was not questioned. It may be noted that the reason for modification of the original decree, pursuant to the order of the trial court, is based upon the fact that the plaintiff has insufficient cash through crop failures and economic conditions existing in the state and country. There is no showing that plaintiff’s earning ability has decreased or that his health has suffered any impairment. Upon the record his earning ability, his legal learning, ripened by years of experience, remains the same. His financial status is impaired at present by reason of surrounding economic conditions. In this regard it may not be overlooked that these press not alone upon the plaintiff. Nevertheless, the trial court, through the modification made, requires plaintiff to pay to defendant the sum of $6,000 in certain payments up to January 1st, 1925, which average, in amount, about $200 monthly, whereas, the original decree provides for the payment of only $225. In other words, although the economic conditions and the present financial status of plaintiff have placed him in a position where he has insufficient cash to meet current monthly payments, yet the court modifies the original decree in such a manner as practically to provide that plaintiff shall, nevertheless, in his present condition, make approximately the same payments, with the further condition that thereafter he shall be relieved from all further liability.