Desjardins v. Desjardins, 14582

• Decision Date: 26 September 1962
• Docket Number: 14583.,No. 14582,14582
• Citation: 308 F.2d 111
• Parties: Rosemary Scott DESJARDINS, Plaintiff-Appellee, v. Irene DESJARDINS, Individually, and as Administratrix, with Will annexed, of the Estate of Gregory T. Desjardins, deceased, Defendant-Appellant. Rosemary Scott DESJARDINS, Plaintiff-Cross Appellant, v. Irene DESJARDINS, Individually, and as Administratrix, with Will annexed, of the Estate of Gregory T. Desjardins, deceased, Defendant-Cross Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

308 F.2d 111 (1962)

Rosemary Scott DESJARDINS, Plaintiff-Appellee, v. Irene DESJARDINS, Individually, and as Administratrix, with Will annexed, of the Estate of Gregory T. Desjardins, deceased, Defendant-Appellant.

Rosemary Scott DESJARDINS, Plaintiff-Cross Appellant, v. Irene DESJARDINS, Individually, and as Administratrix, with Will annexed, of the Estate of Gregory T. Desjardins, deceased, Defendant-Cross Appellee.

Nos. 14582, 14583.

United States Court of Appeals Sixth Circuit.

September 26, 1962.

COPYRIGHT MATERIAL OMITTED

M. Brooks Senn, Louisville, Ky. (Murray Ramson, New York City, on the brief; Bullitt, Dawson & Tarrant, Louisville, Ky., Ramson, Bogaty, Trainor & MacDonald, New York City, of counsel), for Rosemary Scott Desjardins.

Ben Turpen, Cincinnati, Ohio (William O. Ware, Covington, Ky., on the brief), for Irene Desjardins.

Before MILLER, Chief Judge, O'SULLIVAN, Circuit Judge, and BOYD, District Judge.

O'SULLIVAN, Circuit Judge.

In this case, plaintiff-appellee and cross-appellant, Rosemary Scott Desjardins (herein called Rosemary) obtained a judgment of $24,248.86 against defendant-appellant and cross-appellee, Irene Desjardins (herein called Irene), individually, and as administratrix of the Estate of Gregory Desjardins (herein called Gregory). Rosemary was the divorced wife of Gregory; Irene, his widow, was his second wife. The judgment was the amount that the District Judge found was owing, on the date of the death of Gregory, to Rosemary for monthly payments that Gregory was to have paid to her in accordance with the terms of a separation agreement which had been confirmed by the decree by which Rosemary and Gregory were divorced. The District Judge held that Gregory's estate was not liable for any monthly payments ($250.00 per month) after his death, and disallowed Rosemary's claim therefor. He also refused to award plaintiff the sum of $10,000.00 which she claims was due on account of Gregory's alleged failure to maintain a life insurance policy in that amount payable to Rosemary, as required by the separation agreement. Both parties appeal. This is a diversity case, tried to the Court without a jury. The District Judge's opinion is reported as Desjardins v. Desjardins, D.C., 193 F.Supp. 210.

Gregory and Rosemary were married in 1923. They had a son, John. On April 7, 1944, they executed a separation agreement, the following portions of which are pertinent here:

"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 the payment in the amount of One Thousand Dollars ($1,000.00) to the Husband.

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"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.

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"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.

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"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.

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"9. The parties agree, each complying with the terms of this agreement in all respects, to hold and save harmless each other from any claims, liabilities or judgments of any kind or description, by way of alimony, dower, inheritance or otherwise."

A decree of divorce, incorporating this agreement, was granted June 20, 1944, by the Common Pleas Court of Hamilton County, Ohio. Gregory later married Irene, with whom he lived until his death in 1956.

The complaint avers that between the date of the divorce and December 31, 1952, a total of $6,867.00 was paid to Rosemary by Gregory as monthly support; that nothing was paid to her thereafter, either by Gregory or his estate; and that Gregory had not provided the $10,000.00 life insurance policy called for by the separation agreement. The total sum payable as monthly support payments from the divorce decree, June 20, 1944, to the date of Gregory's death, June 15, 1956, was $36,000.00. The sum of $6,867.00 was admittedly paid on this total obligation.

Defendant's answer admitted that no payments had been made since Gregory's death, admitted the sum already paid, $6,867.00, but denied that any more money was owing. As a special defense, defendant asserted that the separation agreement contained mutual covenants, one of which plaintiff had breached by not using the net balance received by her from the proceeds of the sale of the real estate to pay for her son's tuition, and that such breach was a complete defense to the action. The defendant further pleaded that the divorce decree of the Hamilton, Ohio, Common Pleas Court had not been reduced to a lump sum and consequently was not a final judgment entitled, in this suit in Kentucky, to full faith and credit.

The plaintiff, Rosemary Desjardins, was the only witness at the trial. Her testimony, together with the divorce decree entered in the Hamilton County, Ohio, Court of Common Pleas (with the separation agreement attached as a part thereof) made up plaintiff's proofs. Defendant offered none. Admissions by the pleadings, and otherwise, provide the additional facts recited herein. Plaintiff testified that she had remained unmarried after her divorce and that the only money she received from Gregory was $6,867.00. She stated that she had, as required by the separation agreement, paid $1,000.00 of the proceeds of the sale of the house to Gregory and had used the balance, "about $3,000.00." for living expenses, instead of paying it on the son's tuition at college as she had agreed. Her asserted reason for so doing was that, not receiving her support payments regularly, she needed the funds to live. She said she had not pressed Gregory for support payments, but from time to time called his attention to his obligations in this respect. She admitted that Gregory had paid his son's tuition for the remaining three years at St. John's College. From disclosures on cross-examination of plaintiff, the District Judge concluded that she had received $5,884.14 from the sale of the real estate and that after paying $1,000.00 to Gregory, the balance of $4,884.14 should have been paid on the son's tuition. Plaintiff testified that she had not received any money as proceeds of a life insurance policy on Gregory's life.

The District Judge gave judgment for plaintiff in the amount of $24,248.86. That sum was reached by subtracting from the total money due as monthly support payments from the date of divorce until the date of Gregory's death, ($36,000.00), the amount admittedly paid, ($6,867.00), and the amount which plaintiff should have paid as tuition for her son's education ($4,884.14). No recovery was given for the amount claimed due after Gregory's death, nor was any given for the $10,000.00 which plaintiff says she should have received as insurance on the life of Gregory.

The appeal and cross-appeal before us present four questions: First, was there competent evidence to sustain the judgment for plaintiff; Second, did monthly payments to Rosemary continue to accrue as obligations of his estate after the death of Gregory; Third, did plaintiff prove a breach by Gregory of his promise to maintain a $10,000.00 life insurance policy for the benefit of Rosemary; and, Fourth, should the judgment have run against the widow, Irene Desjardins, personally.

1) Was there competent evidence to support the judgment for plaintiff?

Only one point was made by defendant, Irene, in this regard. Relying upon the Kentucky "dead man's" statute, K.R.S. § 421.210(2),¹ she contends that it was reversible error to permit Rosemary to testify to the transactions here involved, and that absent such testimony, the decision of the District Court cannot stand. Plaintiff was allowed, over the defendant's objection, to testify as to the amounts that the deceased, Gregory, had paid to her prior to his death. Since there is no rule in the federal court system allowing such testimony, we would be bound to follow this Kentucky procedural statute if it were applicable to the facts here presented. Rule 43(a), F.R. Civ.P., 28 U.S.C.A. See, Mutual Life Ins. Co. v. Green, 37 F.Supp. 949, 951 (W.D.Ky.1941). A fair reading of the District Judge's opinion, however, indicates that he did not rely on such allegedly incompetent testimony for his decision, but rather upon the evidence supplied by the divorce decree, itself. The suit is based upon such decree. That being so, the decree, if it is final, is entitled to full faith and credit. U.S.Const. Art. IV, Sec. 1.² Since the decree was rendered in Ohio, it is to the law of that state to which we look to see if it is final.

Under Ohio law, a decree of a court of competent jurisdiction approving or adopting a separation agreement which fixes the property rights of the parties to a marriage and which provides for the support of the wife is not subject to modification by that court in the absence of mistake, fraud or misrepresentation. Law v. Law, 64 Ohio St. 369, 60 N.E. 560; Newman v....