Bailey v. Bailey

• Decision Date: 10 July 1945
• Docket Number: 9635.
• Citation: 35 S.E.2d 81,127 W.Va. 826
• Parties: BAILEY v. BAILEY.
• Court: West Virginia Supreme Court

35 S.E.2d 81

127 W.Va. 826

BAILEY v. BAILEY.

No. 9635.

Supreme Court of Appeals of West Virginia.

July 10, 1945

Rehearing Denied Sept. 24, 1945.

Appeal from Circuit Court, Harrison County.

Syllabus by the Court.

Upon the hearing of a rule to show cause why the respondent should not be found guilty of contempt for the non-payment of alimony, it is error to enter an order that departs from the purpose of the rule by ordering only the payment of money and not dealing with the contempt charged.

LOVINS President, dissenting.

Stathers, Stathers & Cantrall and Mary Frances Brown, all of Clarksburg, for appellant.

Wyatt & Randolph, of Clarksburg, for appellee.

KENNA Judge.

This ancillary proceeding in civil contempt was brought by Amy Bailey against Howard V. Bailey, her former husband, by a petition filed in the Circuit Court of Harrison County on the 4th day of March, 1943, asking that a rule issue because of the failure and refusal of the alleged contemnor to comply with the terms of a decree of divorce entered in said court on September 13, 1937, awarding to the petitioner a divorce and $130 a month as alimony and for the support and maintenance of their children. The petition alleged that Howard V. Bailey was $780 in arrears in payments that were required to be made under the terms of the decree of divorce. A rule to show cause issued upon the filing of the petition returnable March 20, 1943. Howard V. Bailey appeared on the return day, demurred to the petition and filed an answer. After the overruling of the demurrer depositions were taken on behalf of both the petitioner and the respondent, with the result that on the 26th day of February, 1944, an order was entered not passing upon the question of contempt but ordering that Howard V. Bailey pay to the petitioner the sum of $780. 'being the said amount of alimony and maintenance money due the plaintiff under said decree of September 13th, 1937 * * *' within thirty days of the entry of the order. It is from the last mentioned decree that this appeal was allowed under Subsection (g) of Code, 58-5-1 the Court being of the opinion that the order entered partook more of the nature of a decree requiring money to be paid than it did of a judgment for contempt, the order appealed from containing no provision either imposing punishment for, or passing upon the existence of, contempt by disregard of the decree of September 13, 1937.

Bailey and his wife, who then had three minor children, on July 31, 1937, evidently in contemplation of divorce, executed a written agreement drawn by her attorney specifying a monthly sum of $130 to be paid to Mrs. Bailey by him as alimony and for the support of the children who were to remain in her custody, the amount of the monthly payments to be reduced as the support of the children became unnecessary due to death, maturity, or marriage. Within a few days after the execution of the agreement Mrs. Bailey brought suit for divorce, her bill of complaint praying that the contract of July 31, 1937, 'be affirmed'. Bailey did not appear, and in the early fall of that year Mrs. Bailey obtained her decree. The decree in question fixes the amount of alimony at $130, being the same amount fixed in the understanding executed a few days before. However, the decree did not follow nor affirm the terms of the written agreement otherwise, and did not provide for the reduction of the monthly payments upon maturity, death or marriage of each of the children as did the contract.

Under the foregoing circumstances Bailey contends that he was advised that the terms of the contract would control and would operate to reduce the payment to be made monthly under the terms of the decree. He, therefore, without asking a change in the terms of the decree of September 13, 1937, as the children became of age beginning in January, 1941, reduced the amount of the monthly payments to seventy dollars. He further contends that Mrs. Bailey is now barred from contending otherwise due to the fact that she accepted checks marked as being payment in full to date and signed receipts so stating.

There is no substantial difference as to the amount that remains unpaid if the unconditional amount named in the decree of September 13, 1937, continued to be the required monthly payment.

To the contention that the decree of September 13, 1937, is void to the extent that it is not confined to the prayer of the bill of complaint, it need only be said that generally speaking the rule sought to be applied is an established chancery practice, going to the nature of the relief sought, in the absence of statute. However, the provisions of Code, 48-2-15, are plainly controlling over the state of the pleadings and vest a discretion in the trial chancellor as to the maintenance of the parties and minor children not dependent thereon. The fact that Bailey may have been advised to the contrary and may have been told that the contract was not superseded by the decree but remained in effect, although it may mitigate the trial chancellor's pronouncement if he is found guilty of contempt, cannot otherwise affect the result. Since the Circuit Court had complete control, regardless of the contractual relations of the parties, over fixing the amount of alimony and its time of payment, it follows that the parties cannot by contract alter or change the terms of its decree. Therefore, the checks stating they were payment in full and the receipts therefor must give way to an undisputed showing that the terms of the decree in that regard have not been complied with.

However, there is what we regard as a departure deserving correction in the trial chancellor's order of February 26, 1944, pursuant to the rule issued March 4, 1943, the rule having directed that Bailey 'show cause why he should not be adjudged to answer for contempt', while the order of February 26, 1944, although finding that the matters offered in defense of the rule 'are not sound in law' and dismissing the answer, altogether fails to consider the charge of contempt to which the rule was confined, but directs only the payment of the amount found to be due under the court's former decrees. This, in our opinion, is not the...