Bynum v. Bynum
Decision Date | 18 October 1938 |
Docket Number | Case Number: 28259 |
Citation | 1938 OK 520,184 Okla. 36,84 P.2d 424 |
Parties | BYNUM v. BYNUM |
Court | Oklahoma Supreme Court |
¶0 1. DIVORCE - Continuing Jurisdiction of Court to Make or Change Orders Relating to Custody and Maintenance of Minor Children.
Under the provisions of section 671, O. S. 1931 (12 Okla. Stat. Ann. sec. 1277), the court retains the right at any time, upon its own motion, or on the suggestion of anyone interested, to make such reasonable order as may be necessary upon either or both of the parties to a divorce action to provide for the guardianship, custody, support, and maintenance of their minor children, and such orders may be changed from time to time.
2. SAME - Authority of Court to Change Order for Support of Children Issued Without Notice to Defendant and Contrary to Property Settlement - Statutory Limitations on Vacating Judgments After Term not Applicable.
The wife instituted divorce proceedings, and the husband and wife entered into a property settlement with provision that the wife support and maintain the minor children. Upon being assured that the provisions of the property settlement and care of children would be approved by the court, the defendant husband signed a waiver of service and appearance and was not present at the hearing of the petition for divorce. The court ignored the property settlement agreement in so far as the support of the children was concerned and entered an order against the defendant therefor, with lien against defendant's property to secure same. Held, that upon being informed of the nature of the court's order and decree, upon proper showing by the defendant, the former order of the court may be set aside by the court and an order entered requiring the husband to contribute to the support of the minor children, and the provisions of sections 556 and 563, O. S. 1931, relative to limitations, do not apply.
3. PARENT AND CHILD - Wife by Contract May not Relieve Husband of Obligations to Support Children.
A married woman cannot, by a separate contract, relieve her husband of his obligations to support his minor children.
Appeal from District Court, Woodward County; O.C. Wybrant, Judge.
Motion by Louis E. Bynum to modify former decree of court relative to support of minor children in divorce proceedings. Judgment for movant, and Mrs. Nettie Bynum appeals. Affirmed.
Sam S. Gill and Jack Jett, for plaintiff in error.
Mauntel & Spellman, for defendant in error.
¶1 This is an appeal from a judgment of the district court of Woodward County.
¶2 The record discloses that in 1925. Nettie Bynum, the plaintiff, was granted a divorce from her husband, Louis E. Bynum. Upon filing the petition for divorce, a property agreement was drawn and agreed to between the parties whereby all of their property was divided. Nettie Bynum was to have the home place in the city of Woodward with furnishings of the agreed value of $1,250; also the hamburger stand located on the residence lot with all fixtures and utensils, valued at $500, making an estimated total value of $1,750.
¶3 The property settlement agreement further provided that Louis E. Bynum should have 80 acres of land described, of the agreed value of $1,000, and cash on hand in the sum of $800, making a total estimated value of $1,800. It was further provided in the settlement that Nettie Bynum was to have the sole custody and control of the two minor children and to provide for their maintenance and education until they reached their majority.
¶4 The pleadings were all prepared by plaintiff's attorney, agreed upon and filed the same day, and included a petition embodying the property settlement agreement with request that it be carried out in the divorce proceedings.
¶5 The defendant entered his appearance by a waiver of the issuing and serving of summons.
¶6 The cause was heard about eleven months after the divorce proceedings were filed. The defendant, Louis E. Bynum, was not before the court at the hearing. Upon hearing the petition and testimony, the decree of divorce was granted. Without any notice to the defendant, the court wrote into the ready-prepared and agreed-to decree provisions requiring the defendant to pay into the office of the court clerk the sum of $15 each month for the purpose of helping to clothe, feed, and educate the two minor children, and to continue such payments until the children reached the age of 18 years. The decree was further changed so as to impress the property received by the defendant with a lien to secure the payments due under the terms of said order for the support of the minor children.
¶7 All of the additional orders added to the decree were made without the defendant being present in person or by attorney and without his knowledge. The defendant was not in the county and had no knowledge when the decree was granted. The testimony shows that in the latter part of 1926 the defendant received a letter from the attorney of the plaintiff and former wife, demanding payment of the back sum of $15 monthly payments to be used in purchasing some lots in the town of Jones, Okla.
¶8 The record discloses that on December 5, 1936, the defendant filed his motion to modify the final decree granted in said divorce proceedings, setting up the property settlement agreement. The plaintiff filed her response thereto. The matter was heard to the court and testimony was taken. The court entered judgment setting aside the former judgment in so far as the same provided for and required the payment of $15 per month and entered judgment requiring the defendant to pay to the court clerk for the children's support the sum of $30 per month for five months, when one of the children would become of age; thereafter requiring the payment of $15 per month until the other child would become of age. It is from this judgment that this appeal has been taken by the plaintiff.
¶9 The...
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