Cain v. King

• Decision Date: 20 May 1970
• Docket Number: Civ. A. No. 69-96.
• Parties: Mrs. Daudrille H. CAIN, formerly Mrs. Daudrille H. King v. George Harold KING, Jr.
• Court: U.S. District Court — Eastern District of Louisiana

313 F. Supp. 10

Mrs. Daudrille H. CAIN, formerly Mrs. Daudrille H. King v. George Harold KING, Jr.

Civ. A. No. 69-96.

United States District Court, E. D. Louisiana, Baton Rouge Division.

May 20, 1970.

Tom F. Phillips, Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., L. Lamar Beacham, Jackson, Miss., for plaintiff.

Victor A. Sachse, III, Breazeale, Sachse & Wilson, Baton Rouge, La., for defendant.

WEST, Chief Judge:

This case involves a dispute concerning the construction and effect of a marital separation agreement entered into between the plaintiff, Mrs. Daudrille H. Cain (formerly Mrs. Daudrille H. King) and the defendant, Mr. George Harold King, Jr. This couple was married in 1942, and of the marriage three children were born. In late 1962 or early 1963, irreconcilable differences arose between them and a divorce became imminent. At that time both parties were residing in the State of Mississippi. In order to "adjust without submission to the Court the matter of support and maintenance for wife and children," the plaintiff and defendant entered into a pre-divorce, marital settlement agreement, which read, in toto, as follows:

"The undersigned, being unable to adjust their marital difficulties to the point of reconciliation, and an action for divorce in the Chancery Court of Madison County, Mississippi, being imminent, desiring to adjust without submission to the Court the matter of support and maintenance for wife and children, taking into account that the undersigned Daudrille H. King, wife, has certain independent income, and that the children, too, each have certain income from established trusts, the status of none of which is affected hereby, do hereby agree as follows:

"1. That the husband and father, G. H. King, Jr., beginning June 10, 1963, shall pay monthly to Daudrille H. King, in Canton, Mississippi, or any other City in which she may take up residence, the sum of $250.00.

"2. That beginning upon same date, he shall pay over to Daudrille H. King, for the support of their daughter, Lisa Hollaway King, $150.00 per month, until Lisa shall complete her sub-college school work, after which time her full care, education and maintenance shall be upon him as next herein provided for the other two chidren.

"3. That, effective upon said date, he assumes full financial responsibility for the care, education and maintenance of Linda Elaine King and G. H. King, III, their other two children, such expenditures to be limited to what is reasonable under circumstances then existing, and on approximately the plane of their present standard of living.

"4. That the furniture and furnishings in the residence which they have been occupying in Canton shall wholly be the property of Daudrille H. King; and the furniture and furnishings in the residence at 2214 Wyoming Avenue, N.W., Washington, D. C., shall be wholly the property of G. H. King, Jr.

"5. That the custody of the three children, Linda Elaine King, George Harold King, III, and Lisa Hollaway King, may be awarded by the Chancery Court of Madison County, Mississippi, to Daudrille H. King; but G. H. King, Jr., shall be granted in such decree right to visit the children, and have them visit him, at times, for such time, at such places, and under such circumstances, as will be agreed upon by the parties hereto from time to time, and so as not to interfere with school work.

"The agreements of this paragraph shall not affect the continued jurisdiction of the Chancery Court of Madison County, Mississippi.

"6. This agreement may be made a part of any decree which will be rendered by the Chancery Court of Madison County, Mississippi, in the suit therein to be filed by Daudrille H. King, for divorce and relief incidental thereto, including the custody of the children, and neither party shall hereafter have any claim upon or against the other with respect to property and property rights not set forth hereinabove.

"Executed in duplicate this, 20th day of March, 1963.

"(Signed) George Harold King, Jr. "George Harold King, Jr. "(Signed) Daudrille H. King "Daudrille H. King"

Two days later, on March 22, 1963, plaintiff filed suit for divorce in the Chancery Court of Madison County, Mississippi. On May 13, 1963, the Chancery Court entered a Divorce Decree, which decree, in accordance with Paragraph 6 of the marital settlement agreement, incorporated said agreement therein. The divorce decree reads as follows:

"IN THE CHANCERY COURT OF MADISON COUNTY MISSISSIPPI Mrs. Daudrille H. King, | | Complainant | | vs. > No. 18-162 | G. H. King, Jr. | Defendant |

DIVORCE DECREE

This cause coming on this day to be heard on the Original Bill, Waiver of Process and Consent to Hearing executed by the Defendant and filed in this cause more than five (5) days prior to this term of court and now in the files of this cause, and on oral testimony heard by the Chancellor in open court.

And it appearing to the Court that the causes for divorce alleged in the Original Bill are good and sufficient grounds for divorce; and it appearing to the Court from the preponderance of the evidence and the Court does find that the causes stated in the Bill and the facts stated therein are all true as therein stated and that the Complainant is entitled to a divorce from the bonds of matrimony heretofore existing between said Complainant and said Defendant; and

That the parties hereto have entered into a property settlement, custody, maintenance and support agreement which is fair and just as between the parties hereto and their children, a photostatic copy of said settlement is as follows:

Here is included a copy of the settlement agreement in full.

It is therefore ordered, adjudged and decreed that the bonds of matrimony heretofore existing between Daudrille H. King, Complainant, and G. H. King., Jr., who is the same as George Harold King., Jr., Defendant, both being of the white race be and are hereby dissolved; and

It is further ordered, adjudged and decreed that the said G. H. King, Jr., Defendant, pay unto the Complainant, Daudrille H. King, the sum of Two-Hundred Fifty and no/100 ($250.00) dollars per month beginning June 10th, 1963; and that he shall pay over to Daudrille H. King for the support of their daughter, Lisa Hollaway King, the sum of One-Hundred Fifty and no/100 ($150.00) dollars per month until the said Lisa Hollaway King has completed her sub-college school work, after which time her full care, education and maintenance shall be provided by the said Defendant the same as for his other two children; and that upon said date June 10th, 1963 the said G. H. King, Jr. shall assume the full financial responsibility for the care, education and maintenance of Linda Elaine King and G. H. King, III, their two other children; and

That it is further ordered, adjudged and decreed that the furniture and furnishings in the residence which the parties hereto have been occupying in Canton, Mississippi shall be wholly the property of the said Daudrille H. King; and that the furniture and furnishings in the residence at 2214 Wyoming Avenue, N.W., Washington, D. C. shall be wholly the property of the said G. H. King, Jr.; and

It is further ordered, adjudged and decreed that Daudrille H. King shall have the custody of said three children, Linda Elaine King, G. H. King, III, and Lisa Hollaway King, but that G. H. King, Jr. is hereby granted the right to visit said children and have said children visit him at such times as not to interfere with their school work; and

It is further ordered, adjudged and decreed that said settlement entered into by the parties hereto is fully approved as being fair and just between the parties hereto and to their children and is made a part of this decree.

Ordered, adjudged and decreed, this the 13th day of May, 1963.

(Signed) C. D. Williams Chancellor."

Pursuant to the agreement and decree, defendant, on or about June 10, 1963, delivered to the plaintiff a check for $400, representing the $250 due the plaintiff under Paragraph 1 of said agreement, and the $150 due for support of Lisa King, the youngest daughter, under the provisions of Paragraph 2 of the agreement. About eleven days later, on June 21, 1963, plaintiff remarried and became Mrs. William S. Cain, wife of a practicing attorney in Canton, Mississippi. When the next payment under the agreement became due on July 10, 1963, defendant, having learned of plaintiff's remarriage, delivered a check to her in the sum of $150, believing that since the plaintiff had remarried he no longer owed her the $250 per month which he regarded as alimony or maintenance and support payments. Plaintiff did not complain about the reduction in payments, and consequently, each month after July 10, 1963, defendant continued to deliver to the plaintiff the sum of $150 as called for under the child support provision of the agreement and decree. No demand was ever made upon defendant for resumption of the $250 monthly payments until more than five years later when suddenly, in August of 1968, demand was made by plaintiff upon the defendant for some $17,863.75, which plaintiff contended was accumulated back monthly payments due her under Paragraph 1 of the agreement. This demand was made by way of a law suit filed by the plaintiff against the defendant in the State Court in Madison County, Mississippi. This case was tried on February 5, 1969, and the Chancellor took it under advisement. Before a decision was rendered, however, the Chancellor died. In the meantime the defendant had become a resident of the State of Louisiana and the plaintiff elected to file a new suit, making the same demands in this Court, alleging diversity jurisdiction. At a hearing before this Court on November 7, 1969, it was agreed that both parties would submit to the Court their evidence in written form, together with a transcript of the testimony taken in the Mississippi State Court, and their briefs. This has now been done. Two questions...