Donahoe v. Alcorn

• Decision Date: 10 September 1940
• Docket Number: Case Number: 29489
• Parties: DONAHOE v. ALCORN
• Court: Oklahoma Supreme Court

1940 OK 348

108 P.2d 786

188 Okla. 305

DONAHOE v. ALCORN

Case Number: 29489

Supreme Court of Oklahoma

Decided: September 10, 1940

Syllabus

¶0 1. DIVORCE - Decree against defaulting defendant may provide for support of children though such relief not in accord with specific prayer of petition.

The court may, by reason of section 671, O. S. 1931, at the time of granting a divorce against a defaulting defendant, enter judgment providing for the support of minor children, even though the relief thus granted is not pursuant to or in accord with a specific prayer of the petition.

2. PARENT AND CHILD - Wife by contract may not relieve husband of duty to support children.

A woman cannot by contract relieve her husband of the duty to support his minor children.

Appeal from District Court, Kay County; Claude Duval, Judge.

Motion by William V. Donahoe to modify decree of divorce, granted Mary Elizabeth Donahoe, now Alcorn, with respect to payments for child support. Motion denied, and movant appeals. Affirmed.

Duffy & Wilson, of Ponca City, for plaintiff in error.

Moss & Young, of Tulsa, for defendant in error.

DAVISON, J.

¶1 This cause is presented on appeal from the district court of Kay county. It involves questions relating to the adjustment of monetary differences between the parties to a divorce action.

¶2 On September 9, 1933, the parties to this appeal entered into a separation agreement which embraced stipulations purporting to settle their property rights, fix the amount of alimony, and provide for the custody and support of their two minor children. At the time of entering into the agreement the parties contemplated a divorce, and in connection therewith the submission of the contract to the court for its approval. On this point they agreed:

"That, in event either of the parties hereto shall institute an action for divorce in any court of competent jurisdiction and a divorce shall be granted under contest or otherwise, this separation agreement may be submitted to the court for its approval, and, if approved, shall be incorporated into any decree of divorce rendered between the parties. * * *"

¶3 On September 12, 1933, the defendant in error, Mary Elizabeth Alcorn, who was then Mary Elizabeth Donahoe, filed her petition for divorce in the district court of Kay county in which she alluded to the separation agreement, and requested its approval as well as other specific and general relief. A waiver of summons and entry of appearance was executed by William V. Donahoe, plaintiff in error herein, defendant in the court below, and filed on September 13, 1933.

¶4 Thereafter, on October 13, 1933, the cause was presented to the court. The plaintiff appeared, but the defendant did not. The court granted the divorce and generally approved the separation agreement. In one particular, however, the judgment of the court was at variance with the provisions of the agreement. The agreement contemplated an alternation of the care and custody of the children, and that the defendant should pay to the plaintiff as child support $20 per month per child during all periods of time either or both children should be in plaintiff's custody unless the plaintiff should remarry, in which event such obligation to support the children should terminate.

¶5 The decree and judgment contained no provision for the termination of the payments for child support in the event of plaintiff's remarriage. The agreement was thus disapproved in that respect.

¶6 The mother (plaintiff) remarried and the father (defendant) refused to make further contributions for the support of the children.

¶7 In March of 1939 the defendant filed a motion to modify the decree and cause the same to correspond to the provisions of the separation agreement with respect to the termination of payments for child support. Upon hearing his motion it was denied. He presents the case on appeal. Although the order of appearance is reversed in this court, we shall continue to refer to the parties by their trial court designation.

¶8 The defendant in his brief states his position in the following language:

"* * * It is the contention of plaintiff in error that, having made the separation agreement, which both parties agreed was fair, and with which both were entirely satisfied, and knowing that defendant in error had incorporated the same into her petition for divorce in which she asked that it be ratified and confirmed, on the strength of which she entered his voluntary appearance in the case, that no judgment or decree against him contrary to the clear provisions of such separation agreement and the petition of the plaintiff should have been entered by the court without further notice to him and an opportunity to be heard thereon. It is also the contention of plaintiff in error that, insofar as the divorce decree purports to require him to pay monthly payment therein specified for the support and maintenance of said children, after the remarriage of defendant in error, that such decree is beyond the scope of the pleadings and the issues in the cause, and, therefore, is null and void."

¶9 In connection with this position the defendant invokes the general rule that a judgment purporting to determine an issue not tendered by the pleadings is to that extent void. Fielder v. Fielder, 47 Okla. 66, 147 P. 769; Nero v. Brooks et al., 116 Okla. 279, 244 P. 588; Winters v. Birch, 169 Okla. 237, 36 P.2d 907.

¶10 This general rule is not, however, applicable to the situation here presented, for relief in the matter of making provision for the support of the children of the parties was comprehended by the petition, both by specific request and by a request for general relief.

¶11 The situation here presented is, in respect to the issues tendered and the relief authorized to be granted, somewhat analogous to the problem presented to the court in Haven v. Trammell, 79 Okla. 309, 193 P. 631, wherein we held that a default judgment for alimony could properly be entered upon a petition for divorce requesting general relief (similar to the request contained in the petition now before us) even though the petition did not contain a specific request for such relief. In disposing of the point we said in paragraph 2 of the syllabus:

"Where a petition for divorce contains a prayer for general equitable relief, but does not specifically pray for alimony, alimony, being a mere incident to divorce, may be properly awarded."

...