Biel v. Godwin

• Decision Date: 19 June 1952
• Docket Number: No. 3690,3690
• Citation: 245 P.2d 997,69 Nev. 189
• Parties: BIEL v. GODWIN.
• Court: Nevada Supreme Court

Page 997

245 P.2d 997

69 Nev. 189

BIEL v. GODWIN.

No. 3690.

Supreme Court of Nevada.

June 19, 1952.

Hawkins & Cannon, Las Vegas, for appellant.

Gregory & Callister, Las Vegas, for respondent.

MERRILL, Justice.

This is an action brought upon a foreign judgment. On August 22, 1938 respondent as plaintiff wife secured an interlocutory decree of divorce from appellant in the state of California, which decree awarded her custody of the minor children of the parties and ordered that appellant pay her the sum of $50 a month for their support. On September 18, 1939 that decree was made final. On April 7, 1950 this action was brought by respondent to secure the sum of $3,145 accrued support payments. Judgment was rendered in that amount following trial before the court without a jury. This appeal is taken from that judgment and from order denying new trial.

Appellant first contends that the California judgment was not final since it was at all times subject to modification; that until steps were first taken in the California suit to establish the amount of accrued payments then due, no action upon that judgment could be maintained. In California as in most states, the jurisdiction to modify an award of support applies only as to future installments. As to those already accrued the judgment is final. Parker v. Parker, 203 Cal. 787, 266 P. 283; Keck v. Keck, 219 Cal. 316, 26 P.2d 300; Dreesen v. Dreesen, 31 Cal.App.2d 479, 88 P.2d 223. Accordingly, as to accrued installments full faith and credit must be accorded the California judgment. Establishment by that court of the amount of accrued payments is not necessary. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A.,N.S., 1068, 20 Ann.Cas. 1061; McGregor v. McGregor, 52 Colo. 292, 122 P. 390.

Appellant next contends that all payments accruing prior to April 7, 1944 are barred by the statute of limitations since a cause of action arose on each payment as it became due. It appears from the complaint that out of a total sum of $6,900 accruing under the California decree the sum of $3,755 had been paid. It does not appear that any specific application of these payments was made by either party. In the absence of such application the general rule is that the court will make application to the oldest debt. See 70 C.J.S., Payment, § 72, p. 275. Simple arithmetic demonstrates that with such application no part of the sum sought accrued beyond the statutory period of six years.

Appellant next contends that respondent is estopped to demand more than $40 a month after November, 1941 for the reason that in that month he informed her that he would cease all payments unless she accepted the lesser sum. Respondent denied receiving any such letter and denied that she had ever agreed to a lesser sum than $50 a month. The trial court specifically declared that appellant had failed in his proof that any understanding had been reached in this regard and specifically found that respondent did not agree to any such reduction. Under the state of the record we are unable to disturb that finding. Estoppel by acceptance of benefits may not, then, be asserted. See 19 Am.Jur. 692 (Estoppel, § 65). 'The payment of a valid and undisputed past-due debt cannot be the basis of an estoppel, and an acceptance of a portion of that to which a party is entitled, unless it is done by way of compromise and settlement or accord and satisfaction, is not a bar to the subsequent assertion of a claim for the balance, * * *.'

Appellant next contends that during a portion of the period covered by the payments the children were...