Dalton v. Dalton

• Decision Date: 10 May 1963
• Citation: 367 S.W.2d 840
• Parties: Donna DeMyer DALTON (Yuill), Appellant, v. K. P. DALTON, Jr., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 840

367 S.W.2d 840

Donna DeMyer DALTON (Yuill), Appellant, v. K. P. DALTON, Jr., Appellee.

Court of Appeals of Kentucky.

May 10, 1963.

W. C. Tipton, Hickman, R. P. Burcham, South Fulton, Tenn., for appellant.

James H. Warren, Fulton, for appellee.

STANLEY, Commissioner.

The principal question is whether a father should be exonerated of contempt of court for failing to comply with a judgment requiring monthly payments to his children's mother for their support because she had violated the terms of the judgment relating to their custody. There are two subordinate questions.

In October, 1953, a judgment granting a divorce to Donna D. Dalton from K. P. Dalton, Jr. awarded custody of their two children, then 3 and 6 years old, to the mother with the qualified right of visitation by the father. He was ordered to pay her not less than $75 a month for the children's maintenance. The question of future support was expressly left open. The mother was given the right to remove the children from the jurisdiction of the court.

In May, 1955, on a hearing of the mother's motion for a rule of contempt for nonpayment of the sums adjudged, the court exonerated the father on the ground that he had shown reasonable cause, and found no reason to modify the custodial judgment.

The present proceeding was instituted by another motion for a rule of contempt against the father for subsequent nonpayment of the support awards. The defendant responded with numerous excuses and reasons. Upon a hearing, the court dismissed the rule and modified the judgment to provide in the future (1) monthly payments of $37.50 for each child until he becomes 18 years of age, the same to be paid by the father to the clerk of the court and transmitted by him (less legal fees) to the mother while they are in her custody; and (2) the mother should have custody of the children except for six consecutive weeks in each year during the school vacation. The order provides that the father shall bear the cost of transporting the children to and from their mother's home in Nevada.

The basic facts are that both the father and the mother remarried in February, 1955. She bears the surname of Yuill. She has lived and had the children since remarriage in Nevada. While the father has been variously employed and has lived in several places since his first marriage and divorce, it appears that he has kept up his home ties, and at the time of this hearing was living in Fulton County, Kentucky.

The trial court recited in a findings of fact that the amount of the father's payments was in dispute and that 'apparently his contributions have been in clothing and gifts of various kinds.' The court recited the many asserted defenses to the contempt rule but found only two specific facts. One is that the children go under the present name of their mother, Yuill, and are not known in their own community as Daltons. The other is that the mother did not let the father see his children on the 'excuse' that he came to her home drunk, and she had to have him arrested. He was not punished on condition that he leave Nevada and stay away for a year. The court made no specific finding as to whether the provision for payment of $75 a month had been or had not been complied with, but adjudged that the father should not be held in contempt for his failure to support these children, as the plaintiff was also guilty of violating the terms of the judgment.

Guilt of contempt is implicit in the court's decision, although the basis of the finding is not clear. It is certain that the father had paid but little money to the mother during the years; and in the absence of her agreement to accept clothing or other gifts by the father or the children's grandparents in substitution, the father was not entitled to be credited with their value. Campbell v. Campbell, 223 Ky. 836, 4 S.W.2d 1112; Williams v. West, Ky., 258 S.W.2d 468. It may be observed, however, that a case may arise where in the application of equitable principles regard should be had for substitutional expenditures by the father for the benefit of the children. Cf. Campbell v. Campbell, 209 Ky. 571, 273 S.W. 26; 17A Am.Jur., Divorce and Separation, Sec. 876; Bradley v. Fowler, 30 Wash.2d 609, 192 P.2d 969, 2 A.L.R.2d 822. In the present case the gifts and clothing furnished were insignificant in value.

The accruals of unpaid support payments, it was claimed by the mother, amounted to more than $4,500. The father claimed it was much less. In accord with a majority of the jurisdictions, we hold that unpaid periodical payments for maintenance of children, like that for alimony, become vested when due. The accrued sum of delinquencies is a fixed and liquidated debt, and the court has no power to modify the judgment as to it. Boehmer v. Boehmer, 259 Ky. 69, 82 S.W.2d 199; Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68; Spencer v. Spencer, Ky., 312 S.W.2d 360; Knight v. Knight, Ky., 341 S.W.2d 59. It is to be noted that in this case the trial court did not expressly relieve the father of liability for these arrears, although the effect of the modified decree seems to have been to start anew. If he was unable at any time to have complied with the order, he could have sought relief on that ground. That he did not do. On this hearing he introduced some evidence to that effect, based on physical disability, unemployment and low earnings; but, in our opinion, it was not sufficient to meet the requirements of the law. As a general rule, inability of a father without fault on his part to make the payments adjudged for support of his children is a defense to a charge of contempt. But the burden is upon him to make that condition clear. Hembree v. Hembree, 208 Ky. 658, 271 S.W. 1100; Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517. With respect to the accrued deficiencies, Dalton testified he was not able to pay the sum, but that it was possible that he could borrow the money from his father and a bank and pay it.

We think it clear that the father had violated the order of court without showing legal excuse and was subject to being adjudged in contempt. Indeed, as stated, that is implicit in the court's finding; but the court declined to hold the father in contempt because the mother was also guilty of violating the terms of the judgment. The reasons for this conclusion are not clear. Reference is made in the findings that the mother had removed the children from the jurisdiction of the court. But that was permitted by the original judgment. Other reasons indicated are that the mother had violated the father's visitation rights and would not permit them to visit him; also, that she had enrolled the children in school under the name of Yuill instead of their true name of Dalton, and they were known as Yuills in the community in which they lived.

Whatever infractions of the custodial judgment there may have been on the mother's part, the children should not be deprived of their natural and legal right of support from their father on account of the dissensions of their parents for causes of which they are innocent (Cf. Campbell v. Campbell, 213 Ky. 621, 281 S.W. 800), and the father may not evade his...