Ferguson v. Ferguson

• Decision Date: 19 May 1977
• Docket Number: No. 14639,14639
• Citation: 564 P.2d 1380
• Parties: Vera Arlene FERGUSON, Plaintiff and Appellant, v. Lowell Gene FERGUSON, Defendant and Respondent.
• Court: Utah Supreme Court

Page 1380

564 P.2d 1380

Vera Arlene FERGUSON, Plaintiff and Appellant, v. Lowell Gene FERGUSON, Defendant and Respondent.

No. 14639.

Supreme Court of Utah.

May 19, 1977.

Harold G. Christensen and Ellen Maycock, of Worsley, Snow & Christensen, Salt Lake City, for plaintiff-appellant.

Roger D. Sandack, of Sandack & Sandack, Salt Lake City, for defendant-respondent.

CROCKETT, Justice:

After annulment of her second marriage, plaintiff, Vera Arlene Ferguson, petitioned for reinstatement of alimony payments provided for in a divorce decree from her former husband, the defendants herein, which the latter had ceased to pay upon the plaintiff's second marriage. She also sought a judgment for alimony accrued since that marriage and for an increase in the amount of child support. The trial court rejected her requests relating to alimony, but granted the request for an increase in the amount of child support from $70 per month to $160 per month for each of the three children, and awarded her attorney's fees of $800.

The parties were married in Salt Lake City, Utah, on April 3, 1958, and had three children. On January 24, 1969, the plaintiff was awarded a decree of divorce, custody of the children, $150 per month alimony, and $70 per month as support for each child.

On April 11, 1974, the plaintiff married Glen Hunsaker in Salt Lake County, Utah; and since that date the defendant has made no alimony payments. Six months later, on October 18, 1974, in a default proceeding, plaintiff was granted an annulment on grounds stated to be misrepresentation as to the 'financial status and character' of the defendant therein, Glen Hunsaker.

The determination made by the District Court has that the plaintiff's right to alimony had terminated upon her remarriage and that it was not reinstated by the annulment. The court also expressly found that no special circumstances existed to justify the reinstatement of alimony payments by the defendant.

The essential aspect of the plaintiff's argument is that when her second marriage was annulled, it should be regarded as void ab initio, as though it had never happened, and that she should revert to her former status, reviving her right to the alimony under the prior decree. She cites and relies on two prior decisions of this court, Kent v. Kent ¹ and Cecil v. Cecil. ² It is true that in each of those cases, this Court ruled that under the facts therein, upon an annulment of the subsequent marriage, the alimony provision in the prior divorce decree was revived; and there is concededly language in those decisions which gives plausibility to plaintiff's argument here. However, careful reading and consideration of those cases will reveal that the underlying and controlling principle therein is the satisfying of the requirements of equity.

In the Kent case, the plaintiff had in good faith entered into a 'purported marriage' with another man and had lived with him for but a short time when she learned that he was still married to his former wife. Thereupon she ceased to live or cohabit with him; and it was shown that she had thus been placed in a position that is she were precluded from reclaiming alimony from her first husband, she would be without means of support. The essence of our holding was that under those circumstances it was improper to automatically so deprive her; and the case was remanded for a new trial and a further determination of what the requirements of equity demanded.

The Cecil case also presented a situation appealing in equity to the conscience of the court. The plaintiff's husband sought relief from obligations in a decree to pay alimony. This court, through Justice Wade, said:

Even though it be conceded that the annulment cannot be collaterally attacked, nevertheless what effect an annulment has on a divorced husband's obligation to continue alimony payments to his former wife is to be determined by what a court could reasonably find is equitable under the facts and circumstances. ³

In that case, the wife had a case history of mental infirmity, and her annulment was granted on the ground that she had no mental capacity to enter into the purported second marriage. This court further said:

. . . and her attempted marriage did not adversely alter or change his circumstances so that it would be inequitable to require him to continue his alimony payments. ⁴

It will thus be seen that those cases do not necessarily stand for the proposition that under any and all circumstances an annulment of a subsequent marriage automatically restores the obligation to pay alimony under a prior existing divorce decree. Therefore, they are not necessarily inconsistent with the holding we reach in this case as set forth below. However, it should be observed that we decide as indicated herein notwithstanding anything stated in those cases that may seem to be to the contrary.

In regard to those cases, and to other cases which have ruled that there is an automatic restoration of the alimony requirements under a prior decree, it is noteworthy that one of the principal reasons given therefore was that alimony could not then be allowed in an annulment; and that therefore the woman should be returned to her former status so she will not be left without support. ⁵ Apparently in recognition of these concerns our Legislature in 1971 enacted what is now Section 30--1--17.2, U.C.A.1953, relating to annulments, which provides:

If the parties have accumulated any property or acquired any obligations subsequent to the marriage, or there is a genuine need arising from economic change of circumstances due to the marriage, or if there are children born, or expected, the Court may make temporary and final orders, and subsequently modify the orders, relating to the parties, their property and obligations, the children and their custody and visitation, and the support and maintenance of the parties and children, as may be equitable. . . . (All emphasis herein is added.)

This statutory authorization to make such awards in annulment suits as equity requires removes one of the principal aspects of the reasoning in the cases which held that the annulment of a second marriage had the effect of relating back and restoring the prior decree. It seems appropriate to here recall the statement of Justice Oliver Wendell Holmes who is sometimes quoted to the effect that: 'It is revolting to be told that the justification for a rule is that it was established in the rule of Henry IV; and even more so if whatever reason may have existed for the rule has long since vanished.' ⁶

There is another important aspect of the problem here involved. It relates to the effect any rule of automatic reinstatement of alimony obligations under the prior decree has on the first husband. The cases which have refused to so reinstate reason that, in fairness to him, he should be able to rely on the fact that his former wife has remarried; and that he is thus relieved from paying her alimony. He should then be free to plan and carry forward his own life independent of that obligation, and not left dangling upon uncertainties as to the success or failure of that second marriage, ⁷ a matter over which he has no possible influence or control.

Neither should the former wife be in a position where at her whim or caprice she can choose by an annulment to re-impose the obligation of a alimony payments upon the former husband. Among other undesirable aspects of that situation, there is the possibility of her engaging in collusion with the later spouse for the purpose of restoring entitlement to alimony under the prior decree. The objections to any rule of automatic restoration are emphasized by the fact that the first husband (defendant here) is not, and could not become, a party to the annulment proceeding to see that his rights are protected therein.

Also to be considered is the fact that there is a possibility of collusion reversed to that just referred to above. Assume, for example, a situation where a wife of many years had reared a family, was divorced under ever so just and proper decree awarding her alimony; and because of disability, age or for any reason was unable to make a livelihood. Assume further that a husband, motivated by animosity or avarice that sometimes exist, procures an accomplice to connive in a nefarious scheme for the accomplice to persuade the wife to marry him, with a preconceived design of getting the marriage annulled. This for the purpose of effecting the automatic termination of the husband's obligation to pay alimony. Assume that this plan is carried out. Should the wife be left an object of charity or public welfare? The possibility of unconscionable imposition and of injustice is obvious.

From what has been said above it should be apparent that if the rule should be absolute and applied with unreasoning rigidity, either that the annulment of a subsequent marriage automatically restores the alimony obligation under a prior divorce decree, or that it does not do so, circumstances may exist which could result in serious inequities. Some paliation in dealing with the problem confronted herein is to be found in the provisions of Sec. 30--3--5, U.C.A.1953, which gives the District Court continuing jurisdiction in divorce cases to make such 'subsequent changes or new orders . . . as shall be reasonable and necessary.'

In view of this expressly granted continuing jurisdiction of the District Court, and on the basis of what has been said herein, it is our conclusion that it is neither necessary nor desirable, nor in conformity with our law, that there by any rule which must be regarded as absolute and to be applied with unreasoning rigidity, which either automatically restores or automatically eliminates the alimony under the prior divorce decree upon the annulment of a subsequent marriage.

Upon proper application to the District Court invoking its continuing jurisdiction, it should be free to proceed in...