Callister v. Callister

• Decision Date: 16 October 1953
• Docket Number: No. 7967,7967
• Citation: 1 Utah 2d 34,261 P.2d 944
• Parties: d 34 CALLISTER, v. CALLISTER.
• Court: Utah Supreme Court

Page 944

261 P.2d 944

1 Utah 2d 34

CALLISTER, v. CALLISTER.

No. 7967.

Supreme Court of Utah.

Oct. 16, 1953.

James W. Beless, Jr., Gustin, Richards & Mattsson, Salt Lake City, for appellant.

Nielson & Conder, Salt Lake City, for respondent.

HOYT, District Judge.

This appeal involves first the question of power of the court to modify provisions of a divorce decree which required defendant (respondent here) to make monthly payments to plaintiff throughout her life or until her remarriage. In 1945 plaintiff (appellant) commenced suit for divorce and prayed for division of property and for alimony. During the pendency of the proceedings an 'Agreement of Property Settlement and Alimony' was entered into and executed by the parties. In addition to provisions for division between the parties of real and personal property of considerable value the agreement contained the following:

'That the second party (respondent) agrees to pay to the first party (appellant) alimony in the sum of $400.00 per month during the life of the first party or until her remarriage.

'Sixth. This agreement and conveyance is mutually intended to be, and the same is hereby expressly made and intended by each of the parties hereto as a mutual release, relinquishment and conveyance of all the right, title and interest that may now be or shall hereafter be, during the lifetime or at the death of either of the parties hereto, acquired by the other by virtue of said marriage that now subsists between the parties hereto under the laws of the State of Utah, in and to all of the property, both personal and real, of the other party, except to the extent of the moneys to be paid by the second party to the first party as alimony and support money; and it is the intention of the parties hereto to mutually release and waive all provisions of the laws of the State of Utah relating to husband and wife as to dower or the interests of the wife in the real property, homestead rights, etc., and forever bar each other respectively from rights of succession or inheritance by reason of the marriage relation existing between them.

'Seventh. Second party hereby agrees to pay all attorneys' fees, costs, and expenses in any manner incurred by first party in the enforcement of this contract, or by reason of any controversy arising therefrom.'

The plaintiff was granted a divorce, custody of a minor child, and judgment for division of property in accordance with the terms of the agreement mentioned. A copy of the agreement was attached to the court's findings and by reference incorporated as a part of the findings. The decree entered in the case contained the following recitals:

'That plaintiff be and she is hereby awarded judgment against the defendant for alimony in the sum of $400 per month during the life of the plaintiff or until her remarriage, and for support money in the amount of $50 per month for the support of the minor child until said child becomes eighteen years of age. * * *

'That the agreement of property settlement and alimony dated July 28, 1945, heretofore entered into by and between the parties be and the same is hereby approved by the court and the same is hereby ordered to be binding upon the parties.'

In July 1952 the defendant filed a motion to amend the judgment with respect to the monthly payments, and asked the court to reduce the amount from $400 to $200 per month, alleging as grounds therefor that defendant's income had been materially reduced and his health impaired since the rendition of the decree. Plaintiff filed an amended answer denying the defendant's allegations. The original answer is not shown as a part of the record on appeal. Trial of issues was had and the court found that since the rendition of the decree the defendant's income from his practice as a physician and surgeon had decreased from $1,000 per month to $600 per month; that he had remarried and had a wife and child to support; that since 1949 he had suffered from heart trouble which had become progressively worse, making it necessary for him to abstain from activities producing physical or mental strain, thereby reducing his income from his profession; also that plaintiff had income from rentals in excess of $4,500 per year besides some income from investments in stocks. The court concluded that monthly payments required of defendant to plaintiff should be reduced from $400 per month to $250 per month, also that defendant should not be required to pay plaintiff's attorney fees in the proceeding. Judgment was entered accordingly. Defendant appeals and asserts (1) that the judgment requiring monthly payments is not subject to modification that it was based upon an agreement for property settlement and that the payments required do not fall within the accepted definition of alimony; (2) that the evidence does not support the findings of the court relative to change of circumstances upon which the judgment is based; (3) that voluntary impoverishment is not ground for modification of the decree; (4) that the court erred in not allowing plaintiff her attorney fees.

Our statute Sec. 30-3-5, U.C.A.1953, provides that:

'When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable * * *. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper.'

This court has interpreted the statute to authorize the courts to increase or decrease alimony payments upon a showing of substantial change of circumstances. Buzzo v. Buzzo, 45 Utah 625, 148 P. 362.

It is generally held that under such a statute the court can modify a decree for alimony regardless of whether the decree was based upon an agreement of the parties. See annotations in 58 A.L.R. 639; 109 A.L.R. 1068; 166 A.L.R. 675.

This court has held that, by reason of the statute, an agreement or stipulation between parties to a divorce suit as to alimony or payments for support of children is not binding upon the court in entering a divorce decree, but serves only as a recommendation, and if the court adopts the suggestion of the parties it does not thereby lose the right to make such modification or change thereafter as may be requested by either party, based upon change of circumstances warranting such modification. Jones v. Jones, 104 Utah 275, 139 P.2d 222; Barraclough v. Barraclough, 100 Utah 196, 111 P.2d 792.

Counsel for plaintiff contends however that in the above cases there was not involved a property settlement agreement such as here and that this case must therefore be distinguished and should be governed by the doctrine announced in Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634, and North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061. Plaintiffs also cites Ettlinger v. Ettlinger, 3 Cal.2d 172, 44 P.2d 540; Puckett v. Puckett, 21 Cal.2d 833, 136 P.2d 1; and Rich v. Rich, 44 Cal.App.2d 526, 112 P.2d 780. Counsel contends that in these cases it is held that where there has been a property settlement agreement, coupled with an agreement for monthly payments, and the court has approved of such agreement and adopted it in the divorce decree, the provision for monthly payments is an inseparable part of the property settlement and therefore may not be subsequently modified except by consent of both parties.

It is noted that in Dickey v. Dickey, supra, the Supreme Court of Maryland held that where both the agreement and the decree provided for monthly payments during the life or until the remarriage of the wife, such payments could not be considered to be alimony, and therefore the court did not have jurisdiction either to modify the decree or to enforce the payments of contempt proceedings. This was based upon the view that the court in the divorce action did not have power, in the absence of agreement by the parties, to grant a judgment requiring payment of alimony after the death of the husband, and having granted judgment based upon the contract of the parties, which might require payments after the husband's death, such payments could not be considered alimony.

This view is opposed to the majority of appellate decisions as appears from annotations in 18 A.L.R. 1047, 1050, and 101 A.L.R. 324, 326, and is not in harmony with views of this court as announced in Murphy v. Moyle, 17 Utah 113, 53 P. 1010, 1012, 70 Am.St.Rep. 767. The Utah statute at the time of that decision was substantially the same as now. The court said:

'This statute is broad and comprehensive. Under it the court has power to make such a decree as the circumstances may warrant, and doubtless, if there is danger of the father squandering the estate, or if, from hostility or other cause he is likely to refuse maintenance to his wife, or support to his children awarded to her, and thus leave the children to be supported by the mother without aid from his estate, the court may make such order, respecting the property and the support and maintenance of the wife and children, as is just and equitable, and such order or decree may be made to continue in force after his decease; and the court may afterwards, if occasion shall require it, make such change in any decree as 'will be conducive to the best interests of all parties concerned.' * * * it is the solemn duty of every husband and father to support his wife during life, and his children during their minority, suitably to their station in life, and, if he fail to do so, every principle of justice demands that they be thus supported out of his estate.'

It is true that in that case the claim made against the deceased husband's estate was for support of a minor child, but the opinion expressed as to the power of the court under the statute to award alimony to continue after the death of the husband appears to be supported by the weight of...