Andersen v. Andersen

• Decision Date: 28 October 1965
• Docket Number: No. 9695,9695
• Citation: 407 P.2d 304,89 Idaho 551
• Parties: Claire B. ANDERSEN, Plaintiff-Appellant, v. Robert A. ANDERSEN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 304

407 P.2d 304

89 Idaho 551

Claire B. ANDERSEN, Plaintiff-Appellant, v. Robert A. ANDERSEN, Defendant-Respondent.

No. 9695.

Supreme Court of Idaho.

Oct. 28, 1965.

Reginald R. Reeves, Idaho Falls, for appellant.

Petersen, Moss & Olsen, Idaho Falls, for respondent.

TAYLOR, Justice.

This action was brought by plaintiff (appellant) against defendant (respondent) for divorce. December 23, 1963, defendant in his own behalf entered into a written agreement with the plaintiff and her attorney in which it was agreed that, should a divorce be granted, the custody of the children of the parties should be awarded to plaintiff and that defendant should be required to pay plaintiff for the support of the children $115 weekly, and alimony for the support of plaintiff $5 weekly; that the plaintiff should be awarded her clothing, jewelry and personal effects, a 1956 Ford station wagon, a residence at Niantic, Connecticut, and the household furniture, furnishings and appliances; that defendant should be awarded a 1955 Chevrolet automobile and his clothing, sporting equipment and personal effects; that a residence in Idaho Falls, Idaho, should be awarded to the parties as joint tenants; that defendant should be required to pay all installments of incumbrances against both the residence in Connecticut and the residence in Idaho; that upon sale of the Idaho residence the proceeds should be divided equally between the parties; and that defendant should be required to maintain in effect a life, health and accident policy, for the benefit of the children.

The cause was heard by consent of defendant and in his absence. Judgment was entered December 23, 1963, granting divorce to the plaintiff and decreeing custody of the children, support and alimony payments, and division of the property, in accord with the agreement. Subsequently, defendant became delinquent in payment of installments required for the support of plaintiff and the children. After he had paid thereon a total of more than $900, repeated executions were levied by plaintiff upon defendant's wages, resulting in the collection by that means of $519.37, during the two months between May 15th and July 15th, 1964.

August 7, 1964, defendant filed with the court a petition, in which he alleged the garnishment of his wages during the period mentioned as often as once each week and at times twice weekly; that he contacted plaintiff by telephone (she being in Connecticut) in an effort to reach an agreement concerning support payments due, which would enable him to get 'caught up and still save my job'; that he was advised that he could not obtain relief from the court until he had paid all back installments due; that after such advice he again talked to plaintiff by telephone, at which time she agreed to accept $600 and a 'complete set of carpenter's tools and handyman's tools, including a specially constructed work bench, etc.' (then being in Connecticut); that he advised plaintiff that he 'was in bankruptcy and could only get the $600 from the bank if his job were secure, inasmuch as he must repay the loan at $65 per month'; that it was agreed defendant would forward the $600 by Western Union; that she would accept the money and tools in full settlement of past due support and alimony and send plaintiff a statement to that effect; that the money was forwarded and that a receipt and agreement was signed by plaintiff, witnessed by her sister, and returned to defendant. The prayer of the petition was as follows:

'1. That the Court decree that the back support and alimony for plaintiff and the children pursuant to the Decree of December 23, 1963, be declared as paid in full to August 1, 1964.

'2. That Mrs. Andersen and her attorney be enjoined from levying executions on said back support.

'3. For such other and further relief as the court deems proper.'

The cause was submitted to the court upon defendant's petition and two affidavits executed by plaintiff. In her first affidavit plaintiff averred that the defendant was regularly employed and earned sufficient to enable him to pay her reasonable costs and attorney's fees, and requested the court to require defendant to advance not less than $300 travel expense to enable her to be personally present to defend against the petition. In her second affidavit plaintiff averred that on July 26, 1964, she wrote, signed and handed to a Western Union clerk at Baltic, Connecticut, a statement as follows:

'I, Claire B. Andersen, do acknowledge that I have received the amount of $600.00 (six hundred dollars) plus the tools belonging to Robert A. Andersen, Sr. Have accepted this in full settlement of all back support owed me and my children from Robert A. Andersen, St. This was due on August 1, 1964, under the divorce decree that was dated December 23, 1963, and rendered by the district judge in Clark County, Idaho. We will accept the amount of $80.00 (eighty dollars) per week for a period of six months when then the support money will be $100.00 (one hundred dollars) per week until further notice from myself, Claire B. Andersen, or until other suitable arrangements will be made satisfactory to suit both parties. There will be no further wage attachments if Robert A. Andersen, Sr. fully intends to abide by these rules.'

In this second affidavit she also averred that she prepared and executed the statement without the advice of counsel and under duress; that the duress arose out of repeated telephone calls from defendant which 'caused affiant great nervous distress, finally wearing her down'; that the $600 was sent to her by Western Union with the restriction that it could not be delivered until she signed and delivered the statement above set out; that she was in dire need of funds to provide the bare necessities of life for herself and children, and complied with the terms of the restriction as the only way of immediately obtaining funds; and that she repudiated the agreement contained in the receipt and statement and prayed that she be relieved therefrom.

Hearing on the petition was had on the 10th of August, 1964. By its order, dated August 21, 1964, the court modified the decree in agreement with the terms of the receipt and statement given by plaintiff. The order declared all support and alimony payments accrued under the terms of the decree to August 1, 1964, had been paid in full, and provided for payment by the defendant to plaintiff of $80 per week for six months from and after August 1, 1964, and $100 per week from and after February 1, 1965, 'for support of plaintiff and the children of the parties.' The order also enjoined plaintiff and her attorney from causing executions to be issued and levied upon wages or property of the defendant for any support or alimony obligations accruing under the original decree prior to August 1, 1964.

Plaintiff appealed from the order of August 21, 1964, modifying the decree.

No appeal was taken from the subsequent order denying her motion for costs and attorney's fees on appeal. That order is not before us for review. Lawson v. Lawson, 87 Idaho 444, 394 P.2d 1008 (1964); Nichols v. Nichols, 84 Idaho 379, 372 P.2d 758 (1962).

Plaintiff assigned as error the failure of the court to find that the receipt and agreement was executed by her under duress. Considering payments voluntarily made by defendant and...