Desjardins v. Desjardins

• Decision Date: 06 March 1961
• Docket Number: No. 893.,893.
• Citation: 193 F. Supp. 210
• Parties: Rosemary Scott DESJARDINS, Plaintiff, v. Irene DESJARDINS, Individually and as Administratrix with the Will Annexed of the Estate of Gregory T. Desjardins, Deceased, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

193 F. Supp. 210

Rosemary Scott DESJARDINS, Plaintiff, v. Irene DESJARDINS, Individually and as Administratrix with the Will Annexed of the Estate of Gregory T. Desjardins, Deceased, Defendant.

No. 893.

United States District Court E. D. Kentucky, Covington Division.

March 6, 1961.

Bullitt, Dawson & Tarrant, by M. Brooks Senn, Louisville, Ky., Ramson, Bogaty, Trainor & MacDonald, by Malcolm D. MacDonald, New York City, for plaintiff.

Ben Turpen, Cincinnati, Ohio, Ware & Ware, by William O. Ware, Covington, Ky., for defendant.

SWINFORD, District Judge.

Rosemary Scott Desjardins, the plaintiff and Gregory T. Desjardins, now deceased, were married in 1923 and lived together as husband and wife until 1944. The only issue born of this marriage was a son, John Scott Desjardins. In the early part of 1944 Mr. and Mrs. Desjardins separated and a decree of divorce was entered on June 20, 1944. As a part of the separation arrangement which culminated in the absolute divorce, the parties, on April 7, 1944, entered into a written agreement. This writing, called "Articles of Agreement", provides inter alia the following:

"1. The Wife shall undertake to sell the real estate located on Drake Road, Village of Indian Hill, Ohio, and shall be entitled to the entire net proceeds thereof after the payment of the mortgage lien thereon and after a payment in the amount of One Thousand Dollars ($1,000.00) to the Husband. * * *

"2. The Husband agrees to pay the sum of Two Hundred and Fifty Dollars ($250.00) per month to the Wife so long as the Wife shall live or until she remarries.

* * * * * *

"4. The Wife shall have and be entitled to the exclusive custody of the child, John Scott Desjardins. The Husband agrees to pay for the support, education and maintenance of the said John Scott Desjardins, until the said John Scott Desjardins attains the age of twenty-one (21) years, excepting that the Wife shall pay, out of the proceeds of the sale of the house as set forth in paragraph 1, the tuition for said John Scott Desjardins at St. John's College, where he is now enrolled for the balance of his undergraduate course at said college. Said tuition shall be paid in advance at the time said house is sold. In the event, however, that any tuition is refundable or refunded the Wife shall be entitled to said refund.

* * * * * *

"6. The Husband agrees to maintain and keep in force Ten Thousand Dollars ($10,000.00) life insurance (with The Mutual Life Insurance Company of New York), in and to which the Wife is beneficiary to the amount of the full proceeds of said insurance. The Husband further agrees not to change the beneficial interest of the Wife in said insurance."

These "Articles of Agreement" were incorporated into and made a part of the decree of divorce.

On or about June 15, 1956, Gregory T. Desjardins died testate, a resident of Bracken County, Kentucky. At the time of his death he was married to the defendant, Irene Desjardins, who qualified as his administratrix with the will annexed of his estate, and appears here as defendant, both individually and in her trust capacity.

Under the terms of the will the only legatees or devisees of Mr. Desjardins' estate were his wife, Irene Desjardins, and his son, John Scott Desjardins.

The record shows that neither party to the "Articles of Agreement" performed its obligations. The plaintiff, Rosemary Scott Desjardins, sold the house and paid over to her former husband, Gregory T. Desjardins, the sum of $1,000, but did not pay her net receipts amounting to $4,884.14 from the sale of the house to St. John's College for the education of her son as required by the fourth paragraph of the agreement. Instead she used it for her own living expenses. Gregory did not make the monthly payments of $250 to Rosemary as required by paragraph 2. It was because of this failure to make the monthly payments that Rosemary used the funds received from the house for living expenses, which she says she was compelled to do.

After the separation and divorce, Rosemary moved to New York where she has continued to live. The parties communicated from time to time and there was apparently a reasonably friendly relation between them although Gregory repeatedly failed to send to his former wife the alimony payments set forth in the decree. From the time of the decree until the time of his death, he paid to her as alimony the sum of $6,867.

The record presents for determination the following questions: (1) Is the judgment of the Ohio court entitled to full faith and credit in an action in this district or must the relief be sought in the court which entered the decree of divorce? In other words, is the decree such a final judgment as may be used as a basis for this action? (2) Is recovery barred or limited on the principle of abandonment of contract or breach of the obligations of the decree by the plaintiff? (3) Is the estate of Gregory T. Desjardins bound for the monthly alimony payments which accrued and will continue to accrue after decedent's death and during the life of the plaintiff? (4) Is the decedent's estate liable to the extent of the ten thousand dollars life insurance policy referred to in the decree and which the plaintiff claims was never purchased?

The divorce was granted and the decree entered by an Ohio court and the issues presented must therefore be determined by the law of Ohio.

The court is of the opinion that full faith and credit must be accorded the Ohio decree. Past due installments for future alimony under a judgment rendered in one state are within the protection of the full faith and credit clause of the Federal Constitution (Art. 4, § 1) unless it appears from the decree that the court rendering it had the discretionary right to modify it and provided that no modification of the decree had been made prior to the maturity of the installments. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905. If, however, under the law of the state where the judgment is rendered, no vested right attaches to future alimony and such payments are still left in the discretion of the court, the general rule does not apply.

The Ohio courts regard the term "alimony" as synonymous with a division of the property belonging to the parties at the time of separation and hold that decrees approving such agreements are not subject to modification. Newman v. Newman, 1954, 161 Ohio St. 247, 118 N.E.2d 649; Mozden v. Mozden, 1954, 162 Ohio St. 169, 122 N.E.2d 295; Watt v. Watt, 1942, 69 Ohio App. 322, 43 N.E. 2d 633.

In the light of these Ohio cases, I must conclude that the judgment under consideration falls within the general rule of Sistare v. Sistare, supra, and this court must accord to the divorce decree full faith and credit.

It is next contended by the defendant that recovery must be denied on the principle that nonperformance by the plaintiff in her failure to properly account for the net proceeds of the house, as the agreement directed, excused the decedent from performing his part of the contract and the parties abandoned their respective rights under the contract by common consent. The argument on this point might have merit if this were an action on a contract. It is more than that. It is an action on a decree which incorporates the contract between the parties. The agreement was superceded by the decree and the remedies for a breach of the obligations thereof will not be determined by the law of contracts. Holloway v. Holloway, 130 Ohio St. 214, 198 N.E. 579, 154 A.L.R. 439.

The decedent had an obligation to meet the monthly installments during his lifetime by reason of his independent agreement with the plaintiff, which, with his collaboration and consent, became a part of the judgment on which this action is based. The plaintiff is entitled to recover for monthly installments from the time of the decree, subject to any credits to which the defendant may be entitled.

This brings us to a discussion of the plaintiff's contention, designated as No. 3 above, wherein claim is made that alimony continues after the death of Gregory T. Desjardins. Accrued and unpaid alimony may be recovered from the estate of the obligor after his death. Annotation 18 A.L.R. 1040, 1054, supplemented by annotation 39 A.L.R.2d 1406, 1418. Generally, however, the obligation to pay alimony terminates on death. Annotation 39 A.L.R.2d 1406, 1410 (1955). Notwithstanding the general rule, the parties may validly contract for payments in alimony to extend beyond death and to continue until the death of the recipient. When such a contract is incorporated or contemplated in the divorce decree, it will be enforced by the courts. Annotations 18 A.L.R. 1040, 1055, and 39 A.L.R.2d 1406, 1414. The law of Ohio seems to be in accord with these principles. Hassaurek v. Markbreit, 68 Ohio St. 554, 67 N.E. 1066.

The courts of that state and apparently all...