Bethell v. Bethell

• Decision Date: 21 April 1980
• Docket Number: No. 79-332,79-332
• Citation: 268 Ark. 409,597 S.W.2d 576
• Parties: Nancy BETHELL, Petitioner, v. John P. BETHELL, Jr., Respondent.
• Court: Arkansas Supreme Court

Page 576

597 S.W.2d 576

268 Ark. 409

Nancy BETHELL, Petitioner, v. John P. BETHELL, Jr., Respondent.

No. 79-332.

Supreme Court of Arkansas.

April 21, 1980.

Robert J. Brown, Little Rock, for petitioner.

No brief for respondent.

FOGLEMAN, Chief Justice.

The parties were divorced after 14 years of marriage, by a decree of the Chancery Court of the Northern District of Arkansas County, entered on January 6, 1972. They had entered into a written settlement agreement dated January 4, 1972. The decree recited that the amounts set forth in the agreement with respect to alimony and maintenance to be paid to petitioner (plaintiff) by respondent (defendant) "as a means of dispensing with the proof upon those issues which are not now in dispute between the parties" were approved by the court to merge in the decree. Respondent was ordered to pay, subject to the further orders of the court, $700 per month alimony and $500 ($250 for each child) per month for support and maintenance of the two children born to the marriage.

On June 19, 1978, petitioner Nancy N. Bethell filed her "Motion for Contempt" alleging that respondent Dr. John P. Bethell, Jr., was $37,200 ¹ in arrears on the payments ordered and that he had failed to repay a loan of $4,200 for money she lent him. She asked that Dr. Bethell be held in contempt, that he be required to comply with the decree, that she recover the arrearage and the money lent, and that she be allowed attorney's fees.

Dr. Bethell denied petitioner's allegations and pleaded a private agreement between the parties reducing the alimony to $300 per month and alleged that Mrs. Bethell was estopped from getting equitable relief and that she had waived her rights under the divorce decree. Dr. Bethell alleged that he had been regularly paying petitioner $800 per month, of which $300 was alimony and $500 child support. He also alleged that Mrs. Bethell came into court with unclean hands and that she was seeking to perpetrate a fraud on the court. He also asked that his liability for alimony be terminated. After a hearing, the chancellor denied petitioner any relief as to the alleged arrearages and remitted them. She appealed to this court on the ground that the parties had no power to modify either the agreement between the parties or the decree. We transferred the case to the Court of Appeals under Rule 29(3), Rules of the Supreme Court and Court of Appeals (Ark.Stat. Ann. Vol. 3A, Repl.1979). That court affirmed the decree of the Chancery Court. We granted certiorari to review the decision of the Court of Appeals on the ground that the case involved an issue of significant public interest and a legal principle of major importance. We affirm the decision of the Court of Appeals but do not fully agree with some of the opinion of that court.

It was stipulated that Dr. Bethell had paid $800 per month commencing about October, 1973, up through October 1, 1978 and that he had made a payment of $800 on November 15, 1978. Dr. Bethell paid the alimony and child support according to the terms of the decree for about 18 months. He said that Mrs. Bethell got all the money from the sale of their home and paid all the bills, leaving her about $20,000, which she referred to as her savings. He said that an irrevocable life insurance trust of $75,000 had been established for the benefit of Mrs. Bethell and their two male children. According to him, his gross income at the time of the divorce was $4,250 per month, before, and $2,500 per month after, taxes. He said that he could not continue paying $1,200 per month, keep the boys in private schools, pay his other obligations, and still pay his own living expenses. He testified that at the time of the divorce, he and Mrs. Bethell had a verbal agreement, resulting from her asking him, and his agreeing, to pay $1,200 per month, until she started teaching school, and then she would take a cut. Dr. Bethell testified that she suggested $400 per month alimony and $500 per month child support, but that when he suggested that the alimony be only $300 per month, she agreed. He said that it was implicit in that agreement that he would pay for the private schooling of the two boys, which he estimated amounted to $3,600 per year. He stated that in October, 1973, he reduced the payments to Mrs. Bethell in accordance with their verbal agreement. He said that, prior to that time, he had paid for private schooling for both boys, bus fares for visitations, clothes, shoes and insurance.

The written agreement between the Bethells is not fully abstracted, so we rely in part upon the terms of the agreement as they are disclosed by the decree of divorce and the testimony of the parties. We do know that there was a settlement of property rights and that a life insurance trust of some sort was involved.

Mrs. Bethell is 43 years of age. She had not wanted to strap Dr. Bethell forever with paying alimony if she could work and had agreed that, at the time she started working, he could cut the alimony back to $300 per month. She said that Dr. Bethell verbally agreed to pay tuition for both boys at the time that the total monthly payment was reduced to $800 per month, but that the education requirement was not mentioned in the written agreement.

Petitioner asserts that the trial court erred in refusing to render judgment for the alleged arrearages in the payment of alimony to her as a result of the reduction of the payments from $700 to $300, contending that the reduction by Dr. Bethell was voluntary; that the parties had no power to tamper with the court's decree; that the agreement between the parties violated the statute of frauds because it was not in writing; and that there was no consideration for the agreement running to her.

Because of the admitted agreement between the parties, this case is not really a case in which the husband reduced alimony payments by his own unilateral action. Of course, he could not relieve himself of his obligation in this respect. See Jerry v. Jerry, 235 Ark. 589, 361 S.W.2d 92; Thompson v. Thompson, 254 Ark. 881, 496 S.W.2d 425. Furthermore, it is not a case where the trial court's powers of modification are barred because of the written agreement fixing the amount to be allowed, due to the fact that this was not an agreement independent of the decree; to the contrary, the agreement merely established an amount which the court should fix as alimony for the wife, without any intention of conferring upon the wife an independent cause of action on the contract. See Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409; Adams v. Adams, 223 Ark. 656, 267 S.W.2d 778. The written agreement specifically provided that it would merge into the divorce decree.

We do not think petitioner's points for reversal are actually pertinent to the real issues. Even though the chancellor in his opinion pointed out the parties made an oral agreement for reduction of the alimony, he based his remission of the arrearages upon the equities in the case on the bases of that agreement and Dr. Bethell's reliance upon it.

Our treatment of the question of an ex-wife's entitlement to judgment for arrearages in alimony and child support in cases presented to us, has not resulted in guidelines that are a model of clarity, nor has it provided a straight and easily recognizable path to be followed by trial courts, but the holdings in the various cases involving the question are not as inconsistent as they may seem upon superficial examination and "proof-text" reading.

Insofar as dealing with arrearages in payments is concerned, it has been pointed out that there is an analogy in cases involving alimony and those involving child support. Brun v. Rembert, 227 Ark. 241, 297 S.W.2d 940. Within limitations attributable to the overriding concern of the courts for the welfare of children, cases involving child support arrearages have been considered as precedential in cases involving alimony arrearages and vice versa.

Perhaps the beginning point for all considerations of the power of the court to remit accumulated payments is Sage v. Sage, 219 Ark. 853, 245 S.W.2d 398. We held then, and have consistently held thereafter, that entitlement to payment of either alimony or child support vests in the person entitled to it, as the payments accrue, as the equivalent of a debt due. See Brun v. Rembert, supra; Riegler v. Riegler, 246 Ark. 434, 438 S.W.2d 468; Kirkland v. Wright, 247 Ark. 794, 448 S.W.2d 19; Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487. Sage is sometimes cited and relied upon as authority holding that the chancery courts have no power to remit past due payments. Perhaps some of the language of that opinion can be taken argumentatively to support that position. It is very significant, however, that we clearly said that the courts have no power to remit accumulated payments under the circumstances prevailing in that case. We did quote and rely upon a textbook statement that the court, on application to modify a decree of divorce, is without authority to reduce the amounts or modify the decree with reference thereto retrospectively, unless some reservation is made in the decree itself. A little later, we decided Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484, in which we affirmed the chancery court's refusal to allow the mother judgment for unpaid installments of maintenance of the minor child of the parties. There was no mention of Sage and the reasons for the denial of the judgment were not clearly stated, although we said that there was no doubt the chancery court took into consideration the fact that permission was granted the mother to take the child to California and that there might be some expense to the father in the event he wished to visit the child in California. Shortly thereafter we decided Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609. This decision was by a fragmented court and that fact has undoubtedly led to some of the confusion on the question involved...