Armstrong v. Armstrong

• Decision Date: 01 June 1970
• Docket Number: No. 5--5264,5--5264
• Citation: 248 Ark. 835,454 S.W.2d 660
• Parties: , 61 A.L.R.3d 511 Howard M. ARMSTRONG, Appellant, v. Mary Nelle ARMSTRONG, Appellee.
• Court: Arkansas Supreme Court

Page 660

454 S.W.2d 660

248 Ark. 835, 61 A.L.R.3d 511

Howard M. ARMSTRONG, Appellant, v. Mary Nelle ARMSTRONG, Appellee.

No. 5--5264.

Supreme Court of Arkansas.

June 1, 1970.

Rehearing Denied June 29, 1970.

Carpenter, Finch & McArthur, Little Rock, for appellant.

W. J. Walker, Little Rock, for appellee.

HARRIS, Chief Justice.

On November 14, 1967, the Pulaski County Chancery Court, First Division, entered a decree granting an absolute divorce to Mary Nelle Armstrong, appellee herein, from appellant, Howard M. Armstrong. Incorporated into the decree and made a part thereof was a written agreement between the parties entered into on November 13, 1967, whereby appellant and appellee agreed in full upon a property settlement. Thereafter, Mrs. Armstrong filed a motion asserting that appellant was delinquent in child support and alimony payments and subsequently she sought judgment for the arrearage and asked that appellant be cited for contempt. Subsequently, Dr. Armstrong filed a petition seeking a reduction in the payment 'of any and all sums' to appellee, alleging that he had been ill, unable to perform surgical operations, and accordingly his income had been drastically reduced and he was entitled to a reduction in the payment of alimony, support, and maintenance to appellee. On July 2, 1969, the court found that Armstrong was in arrears in his alimony in the sum of $3,843.82, and judgment in that amount was given Mrs. Armstrong, as well as an attorney's fee for her attorney. Notice of appeal of this judgment was given by appellant. On August 29, 1969, a Special Chancellor entered a decree finding that in addition to previous judgments, Armstrong was in arrears in payments of alimony due Mrs. Armstrong in the sum of $2,085.00, and judgment was given her for that amount as well as an additional judgment for $500.00 due Mrs. Armstrong for repayment of a debt, together with attorney's fee. The court also found that:

'The agreement between the parties incorporated in the decree is contractual and the payments thereunder due the plaintiff are not subject to reduction by the court.'

In accordance with this finding, appellant's petition for reduction in alimony payments was denied. From this decree, appellant appeals and the two decrees have been consolidated for appeal purposes. For reversal, it is simply asserted that the chancery court erred in denying reductions in alimony payments, and that its finding that the chancery court lacks power to alter alimony amounts agreed upon by parties in a decree of divorce, is erroneous.

We do not agree that the Court committed error, and it might be said that if appellant's position were upheld, there would hardly be any use in parties entering into an independent settlement contract in contemplation of divorce. Both parties agree that if the contract merged with the decree, the court has authority to alter alimony payments, and they likewise agree that if the contract constitutes a separate and independent agreement, the court does not have the authority to change it. Appellant argues that the language in paragraph '1' of the court's order sustains his position. The language referred to is as follows:

'That the agreement made and entered into on the 13th day of November, 1967 which instrument is fully set forth above, constitutes a fair, equitable and binding agreement upon the parties, and that the same should be, and it hereby is, approved and confirmed and is made a part of the decree of this Court and is hereby given the same force and effect as if its set forth herein. The terms and provisions of said contract may be enforced by the further orders of the court in the same manner and to like effect as are the judgments and decrees of the Court.'

We do not agree that the fact the agreement is 'made a part of the decree of this Court' adds any weight to appellant's position, nor does the fact that the agreement recites that the terms and provisions of the contract may be enforced by orders of the court in the same manner and to like effect as are the judgments and decrees of the court, strengthen the argument.

In Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439, the parties had entered into a written agreement by which they settled all property rights and agreed that the wife would receive $200.00 per month as alimony, and support for the couple's four children. The Chancellor approved the contract and it was incorporated into the divorce decree. Subsequently, the court entered an order changing the amount Mrs. Bachus would receive as set out by the contract, from $200.00 per month to $150.00 per month. She appealed. In reversing the trial court, we said:

'The court erred in reducing the amount of the monthly payments. The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants' contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date. * * * If changed circumstances should subsequently render the payments inequitable the court may decline to enforce by contempt proceedings the payment of a greater sum than the circumstances warrant, thereby remitting the plaintiff to her remedy at law to collect the balance due under the contract.'

Here too, the court might well have punished appellant for contempt if it had found that he was in willful violation of its decree, but as stated in Bachus, the court does not have to enforce the provisions of a decree through contempt proceedings. Of course, one of the purpose of incorporating an agreement that is independently entered into, is to be able to enforce its provisions through contempt proceedings.

In Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954, this Court said:

Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife's support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus case, it does not merge into the court's award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.

'The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon 'the amount the court by its decree should fix as alimony.' * * * A contract of the latter character is usually less formal than an inpendent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.'

The fact that Dr. Armstrong entered into an improvident agreement is not grounds for relief, and we think the provisions of the agreement make clear that it was a separate and independent contract entered into between the parties, and independently enforceable in a court of law. There are nine different matters agreed upon by Doctor and Mrs. Armstrong. In item number '5', Dr. Armstrong agrees to pay Mrs. Armstrong, commencing on the date of the divorce 'the sum of $160.00 per week as alimony for life (our emphasis) or until she remarries'. Still further in the same paragraph, 'In addition the defendant agrees to pay the annual real estate taxes on the plaintiff's present home for so long as alimony is due and payable and for so long as she owns the home'.

Paragraph '5', we think, clearly shows an independent agreement for it will be noted, that unless she remarries, appellee is due to receive alimony for life. This is not normally a provision that would become merged in a decree. Let us suppose that a clerk who earns $300.00 per month is required to pay his ex-wife $125.00 per month as alimony. Suppose that the ex-wife inherits a quarter of a million dollars from an uncle, but the ex-husband continues at his same position and at the same salary. Very likely, under an alimony order entered by the chancellor, the amount would be drastically reduced,--or completely disallowed. In fact, the provision of alimony for life would be most unusual in a divorce decree, such a decree frequently reciting that an award is made 'until further orders of the court'. Even where there is no such provision, that meaning is generally accepted.

Paragraph '6', providing for support of the daughter 'for so long as she is enrolled in school and not gainfully employed' also indicates an independent agreement, for in a great many instances a chancellor will hold that the father's duty to support normal children ends when they have attained their majority. Under the agreement reached between these parties, the daughter could acquire her A.B. degree, her Master's degree, and her Doctor's degree, perhaps attending school until thirty years of age, and the father would be legally obligated to pay the cost.

Paragraph '8' recites that Dr. Armstrong is indebted to Mrs. Armstrong for a personal cash loan in the amount of $2,700.00 which he agrees to repay at the rate of $100.00 per month. Certainly, it could not have been contemplated that the court would have the right to relieve appellant of this obligation. These provisions are referred to as a matter of showing that the parties, when entering into their agreement, desired an independent contract that could be enforced in a court of law as well as in chancery.

Without reciting further from the instrument we think the next-to-last paragraph fully resolves the question before us. That paragraph reads as follows:

'This agreement is made with full knowledge on the part of both parties hereto, that the promises, averments, and covenants herein undertaken...