Ediger v. Ediger

• Citation: 479 P.2d 823,206 Kan. 447
• Decision Date: 23 January 1971
• Docket Number: No. 45859,45859
• Parties: Wilbur EDIGER, Appellee, v. Phyllis R. EDIGER, Appellant.
• Court: United States State Supreme Court of Kansas

Page 823

479 P.2d 823

206 Kan. 447

Wilbur EDIGER, Appellee, v. Phyllis R. EDIGER, Appellant.

No. 45859.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

1. There is a distinction between alimony awarded to a divorced wife and support money for a minor child or children of the marriage; the former is governed by statutory enactment (K.S.A.1970 Supp. 60-1610 (c)), and the facther's duty to support his minor child or children is statutory and naturally and properly is not suspended by the divorce of the parents.

2. Child support directed to be paid to a mother for the support of a minor daughter whose custody is awarded to her by the divorce decree is a distinct thing from alimony awarded to the wife in such a case. Due and unpaid installments for child support and for alimony ordered to be paid by the divorce decree are distinct and separate judgments, and may be collected in the same manner as other judgments of courts of record of this state. Payment of one judgment does not result in the payment of the other.

3. Generally speaking, a divorced father is required to make child support payments as directed by the district court in the divorce decree, and he should not be permitted to vary the terms of the decree or the manner of payment of child support to his convenience, or otherwise disregard the Court's order.

4. Where the final decree of divorce awards alimony to the wife and gives her custody of the minor daughter of the parties, and orders the husband to make payments for alimony and payments for child support to the wife in periodic installments of fixed amounts through the clerk of the district court, and the father fails to make such payments as directed by the final decree, but sends money directly to the daughter, or to others on her behalf, to pay her expenses in obtaining a college education, special considerations of an equitable nature may justify a court in credinting such payments on due and unpaid child support when that can be done without injustice to the wife, but payments made by the father to the daughter in excess of amounts required to be made for child support are considered gratuitous and in effect a gift to the daughter, and may not be applied to due and unpaid installments of the wife's judgment for alimony.

5. The record in a proceeding to fix and determine the amount of alimony owed by the plaintiff to the defendant is examined, and, as more fully set forth in the opinion, it is held: The district court erred in concluding there was an arrearage due upon the defendant's judgment for child support in the amount of $2,272.71, and in further concluding there was due upon the defendant's judgment for alimony only $1,181.10, as of June 30, 1968.

H. Dean Cotton, McPherson, argued the cause, and Archie T. MacDonald, McPherson, was with him on the brief for appellant.

Evart Mills, McPherson, argued the cause and was on the brief for appellee.

FATZER, Justice:

May voluntary overpayments of child support be applied to the payment of unpaid and past due installments of alimony? We hold under the circumstances which attend, they may not, and reverse the judgment of the district court.

The parties will be referred to as they appeared in the district court.

The plaintiff and defendant were divorced on August 9, 1963, and the care and custody of their fifteen-year-old daughter, Rochelle, was awarded to the defendant. In awarding child support, the district court ordered,

'* * * that the plaintiff pay to the Clerk of this Court as and for the support of said minor child the sum of $150.00 on or befoer the 5th day of each calendar month hereafter until such child shall become 21 years of age or the court shall hereafter otherwise order.'

Permanent aimony was awarded the defendant in the lump sum of $18,000 payable in installments, and in the words of the court,

'* * * at the rate of $300.00 to the Clerk of this Court on the 5th day of each calendar month hereafter until paid.'

On September 20, 1963, the district court modified the installment payments of alimony, as follows:

'The sum of $18,000 payable at the rate of $214.00 per month for a period of seven years to the Clerk of this Court on the 5th day of each calendar month hereafter until paid.'

And it further ordered,

'* * * that of the money paid into the Court for child support and alimony that the first $214.00 shall be deemed to be alimony, the balance shall be deemed to be child support. These orders to be effective Sept. 20, 1963.'

On February 7, 1964, the district court modified the child support order and directed that:

'* * * all future payments of child support should be at the rate of $120.00 per month.'

There were no further modifications of the court's orders concerning alimony and child support, either in the manner of payment, or the amount to be paid.

On May 17, 1968, a praecipe for execution was filed and an execution was issued against the plaintiff for $18,000 alimony and due and unpaid child support. The execution was returned on June 17, 1968, endorsed 'No Goods.'

On May 24, 1968, the plaintiff filed a motion requesting the court to fix and determine the amount of alimony owed to the defendant. He alleged he had paid to the clerk of the district court a total of $9,387.33 which should be applied to alimony awarded to the defendant, and further alleged he had paid $7,508.19 as child support for Rochelle, and attached a report of money paid by him directly to her, or to others on her behalf.

On June 28, 1968, the district court heard the plaintiff's motion with respect to payments made by him to Rochelle. After hearing evidence and argument of counsel, the court found that Rochelle attended college for four years, and during the period from May 6, 1964, and ending on her 21st birthday in May, 1968, when she was graduated, the plaintiff made payments totaling $7,508.19 directly to Rochelle, or to others on her behalf, and not through the clerk of the district court. The court adjudged that the amount of money paid directly to Rochelle be credited to child support theretofore ordered paid to her from time to time.

On July 26, 1968, the plaintiff's motion of May 24, 1968, was further heard by the district court to determine the amount of alimony owed to the defendant. At the hearing, the parties agreed the total child support ordered by the court to be paid by the plaintiff for the support of Rochelle from August 9, 1963, until she became 21 years of age, was $7,080. They further agreed that the total amount of alimony which accrued and became payable upon the $18,000 alimony judgment in favor of the defendant from August, 1963, to June 30, 1968, was $12,769.33. After hearing evidence and argument of counsel, the court found that during the period commencing August 12, 1963, and ending June 30, 1968, the plaintiff made payments of alimony and child support through the clerk's office in the amount of $8,887.33.

The court made further findings of fact, conclusions of law, and entered judgment as follows:

'5. Under the order of the Court dated September 20, 1963, the first $214.00 paid by the plaintiff on said judgments shall be deemed alimony and the additional shall be deemed child support. In equity and justice the payments made by plaintiff, whether to the Clerk of the Court or to Rochelle Ediger shall be deemed as payments on such judgments in accordance with said order. The overage in payments, if any, should be applied one-half to the alimony judgment and one-half to the judgment for child support. He order of this Court made on June 28, 1968, in so far as it conflicts with this finding is set aside and vacated.

'6. After making such application of payments, plaintiff is entitled to total credits of $16,395.52 upon said judgments in favor of the defendant totaling $25,080.00 and there is a balance of $8,684.48 on said judgments still to be paid by the plaintiff to defendant. The remaining amount due upon the defendant's judgment for child support is $2,272.71 of which $2,272.71 is in arrears as of June 30, 1968. The remaining amount due upon defendant's judgment for alimony is $6,411.77 of which $1,181.10 is in arrears as of June 30, 1968.'

The effect of the district court's judgment was to allocate or credit approximately $5,000 theretofore paid as child support by the plaintiff to past due and unpaid installments of alimony, which thereby deprived the defendant of that much of her judgment for alimony which was in arrears.

It has been the contention of the defendant throughout this litigation that of the payments made by the plaintiff through the clerk of the district court, the first $214 per month should be applied to alimony, and the balance should be applied to child support, and that when the total of plaintiff's payments of $8,887.33 (as found by the district court) are applied pursuant to the court's order of September 20, 1963, the sum of $6,554.84 was paid as alimony, and the sum of $2,323.49 was paid as child support to and including June 30, 1968, leaving an arrearage of alimony of $6,214.49.

The defendant further contends that if the total of payments made directly to Rochelle, or to others on her behalf, may be applied as a credit on the court's order for child support there results an overpayment of child support in the amount of $2,751.68, and argues that such overpayment was voluntary and in effect a gift or gratuity to Rochelle and, in any event, may not be applied upon past due and unpaid installments of alimony.

It frequently occurs that a father who is ordered to pay child support through the clerk of the district court fails to comply with the order for periodic payments, but makes payments in some manner directly to the minor child or children for their welfare and benefit. There appears to be conflict of authority as to whether a divorce court has the jurisdiction to credit the arrearage of a child support judgment with payments made by the father...