Davis v. Davis

• Decision Date: 09 July 1938
• Docket Number: 33784.
• Citation: 148 Kan. 211,81 P.2d 55
• Parties: DAVIS v. DAVIS. [*]
• Court: Kansas Supreme Court

81 P.2d 55

148 Kan. 211

DAVIS v. DAVIS. ^[*]

No. 33784.

Supreme Court of Kansas

July 9, 1938

Syllabus by the Court.

A judgment for accumulated past-due installments for child's support for a fixed and certain amount, was a "final judgment," within meaning of statute providing that all judgments of courts of record shall bear interest from the day on which they are rendered at the rate of 6 percent. per annum. Gen.St.1935, 41-104, 60-1510.

The fact that plaintiff in divorce action accepted the amount of the judgment for child's support from the clerk of the court without interest was not a waiver of claim to interest since part payment of a debt does not bar a claim for the balance.

Where notice was given, affidavits attached to and made part of application for order directing defendant to pay certain hospital and medical expenses for the benefit of a minor child could be used under statute on hearing of the motion. Gen.St.1935, 60-722.

Where judgment was rendered for past-due installments for child's support for a sum fixed and certain, there was a "final judgment," which might be enforced by execution, but not by attachment and contempt proceedings. Gen.St.1935, 60-1510.

1. A judgment for accumulated past-due installments for child support for a fixed and certain amount, is a final judgment within the meaning of our statute, G.S.1935, 41-104, and bears interest at the rate of six percent.

2. Part payment of a debt does not bar a claim for the balance.

3. Under our statute, G.S.1935, 60-722, where notice has been given, affidavits may be used on the hearing of a motion.

4. A final judgment is not enforcible by attachment and contempt proceedings.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Divorce action by Mary Rachel Davis against Courtney B. Davis wherein a decree of divorce was granted. From an order requiring the defendant to pay interest on a judgment for child support, and from an order directing defendant to pay certain hospital and medical expenses, the defendant appeals and from an order denying plaintiff's motion to require defendant to pay the judgment for child's support in gross and not in installments, she cross-appeals.

Judgment affirmed.

A. M Ebright, P. K. Smith, Bernard Peterson, and Richard A. Hickey, all of Wichita, for appellant.

J. B. Patterson, of Wichita, for appellee.

ALLEN Justice.

This is an appeal from an order of the district court requiring the defendant to pay interest on a judgment for child support and from an order directing defendant to pay certain hospital and medical expenses. The cross-appeal is from an order of the court which denied plaintiff's motion to require defendant to pay the judgment for child support in gross and not in installments.

Plaintiff and defendant were divorced in 1929. At that time they agreed upon a journal entry providing for child support. The defendant being in default for a number of years, plaintiff filed several applications including a citation for contempt. On January 17, 1936, a hearing was held, and the trial court found the defendant owed the plaintiff $10,500 in accumulated past-due installments for child support under the original decree. From these rulings and orders an appeal was taken to this court where the judgment of the trial court was affirmed. Davis v. Davis, 145 Kan. 282, 65 P.2d 562.

Thereafter, the plaintiff filed a motion wherein it was stated that certain payments had been made on account of the judgment of $10,500, but that such payments did not cover interest, and asking for an order requiring the defendant to pay the interest due on the judgment. The court found that under statute, G.S.1935, 41-104, the defendant was obligated to pay interest on the judgment at the rate of six percent.

Defendant asserts the court was in error in making this order.

The journal entry of January 17, 1936, recited:

"It is further found that plaintiff should have and recover judgment against said defendant for all past due installments and payments under said order of June 13, 1929, which the Court finds to be as follows:

"Past due installments, payment on said child support, $10,500.00."

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"It is therefore considered, ordered and adjudged that judgment be entered herein and order made upon and in accordance with the findings and additional findings hereinbefore set out and that said findings be the judgment of the Court."

In the former appeal in discussing this action of the trial court it was said: "It calculated the amount past due for child support and determined it to be $10,500. *** Judgment was rendered for the total amount due and unpaid."

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"It was simply a calculation of the amount appellant had been ordered to pay in accordance with his own agreement, but which he had failed to pay and which amount was reduced to judgment." Davis v. Davis, 145 Kan. 282, 285, 291, 65 P.2d 562, 567.

Our statute, G.S.1935, 41-104, provides that all judgments of courts of record shall bear interest from the day on which they are rendered at the rate of six percent per annum. The only exception mentioned in the statute is in the suit on a contract providing for a different rate of interest. G.S.1935, 41-105.

Whether the judgment of January 17, 1936, was a judgment within the meaning of G.S.1935, 41-104, depends upon the construction of the child support statute, G.S.1935, 60-1510. Upon the former appeal of this case it was determined that the trial court had no power to reduce or to increase the past-due installments for child support. See, also. Wilkinson v Wilkinson, 147 Kan. 485, 77 P.2d 946. It follows that the order of the court, made at the hearing, fixing the amount due on the accrued installments was final. The right of modification had ceased. The latitude of discretion was gone. It became a judgment within the meaning of G.S.1935, 41-104. In this holding no injustice is done the defendant. It was a debt of record. The...