Cole v. Cole
| Decision Date | 17 November 1966 |
| Docket Number | No. 7867,7867 |
| Citation | 420 P.2d 167,101 Ariz. 382 |
| Parties | Waunetta Arline Monroe COLE, Appellant, v. Bass Vincent COLE, Appellee. |
| Court | Arizona Supreme Court |
Lee R. Perry, Carson, Messinger, Elliott, Laughlin & Ragan, Phoenix, for appellant.
Herbert Mallamo, Donald R. Kunz, Phoenix, for appellee.
Waunetta Arline Monroe Cole, hereinafter referred to as plaintiff, brought an action against Bass Vincent Cole, hereinafter referred to as defendant, for delinquent alimony and support payments. A judgment was granted plaintiff allowing her all delinquent alimony payments, and support payments for one child only, since the father had taken custody of the other child, relying on a minute entry to that effect. From this judgment plaintiff appeals.
Plaintiff was granted a decree of divorce from defendant on September 18, 1957. Included in this decree was a provision that defendant pay plaintiff the sum of $100.00 per month alimony, and the sum of $50.00 per month child support for each of their three minor children.
Subsequent to this decree one of the children provided for under the support provision of the decree was married. In accord with this charge of circumstances, the couple filed a written stipulation for a modification of the decree. On November 6, 1958, this modification was granted. It provided that support payments were to be $62.50 per month for David Vincent Cole, and the same amount for Nita Arline Cole, for a total of $125.00 per month.
On February 27, 1959, the court entered a minute entry giving defendant temporary custody of David Vincent Cole, which was followed by a minute entry dated June 15, 1959, changing this temporary custody to permanent custody. Defendant took physical custody of David pursuant to the minute entries. Neither of these minute entries was ever reduced to a written judgment.
On June 11, 1962, plaintiff filed an action to determine the amount of back alimony and support payments due, and an order to show cause why this sum should not be paid. The trial court held that defendant was required to pay only $162.50 from the date of the minute entry for permanent custody of David. Plaintiff's position is that the last judgment given, prior to the one appealed from, was a judgment of November 6, 1958, which ordered that she receive $62.50 per month per child. This entitled her to $125.00 per month in support payments, and the intervening minute entries do not affect this obligation. She claims the minute entry is of no legal effect because it was not reduced to a judgment as required by 16 A.R.S. rule 58(a) and therefore the 1958 judgment is controlling on the issue of the amount of support owed.
Plaintiff's second contention is even if the minute entry has the effect of transferring custody, she is still entitled to support payments of $125.00 per month because this entry did not modify the 1958 support order, nor is there any evidence that the judge who granted this minute entry intended to alter the support order given in 1958.
In Bailey v. Superior Court, 97 Ariz. 293, 399 P.2d 907, this court held that a minute entry ordering a change of custody which had not been reduced to a written judgment in modification of a divorce decree was without legal effect. Therefore, the minute entry made by the court in the instant case did not have the effect of legally transferring the custody of David Vincent Cole to defendant; however, the facts show that plaintiff abided by the minute entry and permitted defendant to take actual custody of the boy for a period of time. The exact amount of time is not shown in the record.
As we have held, support payments are for the support and maintenance of the minor child, and plaintiff is attempting to collect for support and maintenance which she did not give. In the case of Crook v. Crook, 80 Ariz. 275, 296 P.2d 951, 58 A.L.R.2d 352, we stated:
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