Austad v. Austad., 8068

• Decision Date: 13 April 1954
• Docket Number: No. 8068,8068
• Citation: 48 A.L.R.2d 256,269 P.2d 284,2 Utah 2d 49
• Parties: d 49, 48 A.L.R.2d 256 AUSTAD, v. AUSTAD.
• Court: Utah Supreme Court

Page 284

269 P.2d 284

2 Utah 2d 49, 48 A.L.R.2d 256

AUSTAD, v. AUSTAD.

No. 8068.

Supreme Court of Utah.

April 13, 1954.

Wilson & Wilson, Ogden, for appellant.

Max D. Lamph, Lawrence Roland Anderson, Ogden, for respondent.

CROCKETT, Justice.

This appeal is from a judgment in proceedings supplemental to divorce. The trial court found the issues generally in favor of the defendant: Refused to find him in contempt; found that he had substantially complied with the divorce decree; set aside the requirement as to alimony as of the date of the defendant's petition; awarded him custody of the remaining minor children; and entered judgment in favor of the plaintiff for $670, which was only a small portion of the amount she sought.

Plaintiff contends that the trial court erred in the following respects:

1. Giving judgment for only $670 unpaid alimony and support money.

2. Receiving evidence outside of court.

3. Granting custody of children to the defendant.

4. Failing to find defendant in contempt and in not refusing to accord him consideration before the court until he purged himself thereof.

5. Failing to award adequate attorney's fees to her counsel.

As against the plaintiff's attack, we view the evidence in the light most favorable to the defendant. The original decree of divorce was entered October 8, 1945; it awarded the plaintiff custody of the four children, ages one to ten years, and required defendant to pay $125. per month for the plaintiff and the children. Shortly thereafter the plaintiff moved to California, taking the children with her. About a year later she married a man by the name of Alexander, which fact she attempted to conceal from defendant, cautioning the children not to tell him. The marriage was short lived, being terminated by divorce in Nevada, July 28, 1948. Shortly after hearing of plaintiff's marriage, defendant went to California to see her and the children. Upon being confronted with the fact of her remarriage she told defendant, 'I don't want a thing from you, you take care of the children.'

The plaintiff has permitted the children to be shuttled back and forth between her home and the defendant's. They have lived with their father the larger portion of the time since the divorce, and actually most of the time since 1947. Plaintiff permitted this condition to continue, making no demands upon defendant for alimony until this proceeding was commenced in October, 1951, more than five years after her remarriage. In this proceeding, she sought return of the children who had been living with their father, and a judgment for several thousand dollars back alimony and support money. On direct examination she denied having received any payment except through the Weber County Clerk, but on cross-examination, confronted with checks bearing her endorsement, she was obliged to admit receiving a total of 33 such checks.

Contrasted to this, the defendant has maintained somewhat more than usual fatherly concern for his children. In addition to the fact that he had the children the major portion of the time, his evidence was that he made the payments up to the time of plaintiff's remarriage; that after she told him she wanted nothing more for herself, he paid $25 per month for each child when one or more were with her, but admits that he paid no further alimony, and relying on her statement, did not petition to have the alimony terminated as it would have been his right to do. In view of the fact that he is awarded the continued custody and care of the remaining children, the oldest having married in 1950, it is plain that the imposition of a large judgment against him would substantially detract from his ability to provide for their current needs.

It is the plaintiff's position that the $670. judgment in her favor is far too low no matter what method of calculation is used; that assuming the children were to receive $25 each, (the basis upon which defendant says he paid) and that plaintiff was entitled to only $25 of the $125 per month, she would be absolutely entitled to the total of $25 per month for the time the defendant admits alimony was not paid, that is, from the date of her remarriage in 1946 until this proceeding was brought in 1951, a total of 60 months, which simple arithmetic shows would amount to $1,500.

We are thus confronted with the problem as to whether, where the equities weigh heavily against the wife and in favor of the husband, it is nevertheless mandatory on the court to enter judgment for the full amount of alimony installments which have accrued after the wife's marriage to another man.

The plaintiff bases her claim on the case of Myers v. Myers ¹ in which this court stated, inter alia, (a) that a judgment for alimony does not automatically terminate upon the remarriage of the wife, and (b) that the right to accrued alimony is vested and may not be defeated by a subsequent order of court aliminating alimony back to the date of remarriage. In this case we will be concerned only with segment (a) just referred to, which will be hereinafter referred to as the Myers case rule. Inasmuch as this rule, as it would apply in the instant case, seems strangly dissonant from the rules of equity and good conscience which apply generally to matters involving divorce and domestic problems attendant thereupon, it appears meet to make critical inquiry concerning it. This we do in two phases: First as to where it came from and how it got into our law; and second, as to what its actual status in the law of our State is.

The Myers case cites, as authority for the rule therein announced, the case of McGill v. McGill, ² and the authorities which are referred to in that case. In the McGill case the Supreme Court of Kansas said: 'Whatever may be thought, or should be thought, about the policy or propriety of requiring a divorced husband to continue payments of alimony to a wife remarried to another man, the authorities are preponderant in support of the doctrine that her remarriage does not of itself operate as a release of the obligation, although it may well be a ground of application for discharging the defendant from further payments.' (Emphasis added.) An examination of the encyclopedias and annotations which are cited to support this statement, 14 Cyc. 878; 1 R.C.L. 950; 2 A. & E. Ency., 2d Ed., 138; note, 11 Ann.Cas. 523, and the cases upon which they base the statement, Shepherd v. Shepherd, 1 Hun. 240, affirmed, 58 N.Y. 644; Brandt v. Brandt, 40 Or. 477, 67 P. 508; King v King, 38 Ohio St. 370, shows that the judicial decisions are not so 'preponderant' in favor of this rule as the Kansas Court assumed.

Of the three cases just referred to, only that of Shepherd v. Shepherd, supra, can actually be said to stand for the proposition that a wife does not lose her right to alimony on remarriage. In Brandt v. Brandt, supra, the Supreme Court of Oregon did not decide whether alimony automatically terminates when the wife marries, but ruled that inasmuch as the parties were before the court, the alimony was retrospectively terminated as of the date of the remarriage. This achieved the same result as if there were automatic termination.

The case of King v. King, supra, is important to the problem we are considering. It seems to present the real situation from which the rule originated. There the award was for a lump sum of $1,000 as permanent alimony, payable in monthly installments. It was held that remarriage did not cut off the wife's right to receive the full amount of the award even though some of the installments remained to be paid after the subsequent marriage. This rule is perfectly sound and logical when applied to the facts in the King case, but the error apparently has come about in applying it where the award was not for a lump sum, but merely for indefinite current support. The clear distinction which obviously exists between these two situations has received judicial recognition. The courts of Illinois ³ and Georgia ⁴ hold that where the alimony is in a lump sum payable in installments there is no automatic termination on the wife's remarriage; and that this creates an absolute right to the amount so awarded, but indicate that where the alimony is strictly for the current support of the wife, without limit as to the total amount or the number of installments, remarriage of the wife automatically ends her right to such alimony. This distinction is also suggested in the Oklahoma case of Gilcrease v. Gilcrease. ⁵

A survey of decisions which have dealt with this problem indicate that, even though the view expressed in the Myers case is sometimes given lip service as being the general rule, there is actually no preponderance of authority supporting it. ⁶ In addition to the case of McGill v. McGill and the authorities therein cited, hereinabove referred to, it has been announced in the jurisdictions of Missouri ⁷ and New Jersey, ⁸ but certain other authorities which have been referred to as in accord with the Myer's rule, are not so in fact. In Phy v. Phy (Or.), ⁹ Morgan v. Morgan (Ala.), ¹⁰ Heston v. Odlin (Wash.), ¹¹ and Mindlin v. Mindlin (N.M.), ¹² the courts were only faced with the problem of prospective modification; there was no question as to alimony accruing after the remarriage of the wife.

In some of the few jurisdictions wherein the rule has been announced, recognition of its unsoundness has been manifest by the fact that the legislatures have seen fit to abrogate it. In New York ¹³ and New Jersey, ¹⁴ after the Shepherd and Cropsey cases respectively, statutes were passed providing that upon application of the husband, it is mandatory on the court to terminate all alimony subsequent to the wife's remarriage. And in California, where retroactive elimination of alimony was permitted upon petition, by statute, petitioning is now unnecessary, and remarriage of the wife automatically terminates her right to alimony. ¹⁵

On the other hand, the following...