Francis v. Francis

• Citation: 412 S.W.2d 29
• Decision Date: 01 March 1967
• Docket Number: No. A--11768,A--11768
• Parties: Anna Goldlustova FRANCIS, Petitioner, v. Garnet P. FRANCIS, Jr., Respondent.
• Court: Supreme Court of Texas

Page 29

412 S.W.2d 29

Anna Goldlustova FRANCIS, Petitioner, v. Garnet P. FRANCIS, Jr., Respondent.

No. A--11768.

Supreme Court of Texas.

March 1, 1967.

Rehearing Denied March 29, 1967.

Gerald B. Shifrin, El Paso, for petitioner.

Doyle H. Gaither, El Paso, for respondent.

CALVERT, Chief Justice.

Respondent and petitioner were formerly husband and wife. Their marriage was dissolved by a judgment of a district court of El Paso County, entered on May 5, 1959, which granted a divorce to petitioner on her cross-action. The judgment also approved a property settlement agreement entered into by the parties.

The property settlement agreement was executed by respondent and petitioner on April 29, 1959. It dealt with several matters. Only one provision is of concern to us in this case. By that provision petitioner agreed to relinquish all right, title and interest in and to the property of respondent in consideration of his agreement to pay her the sum of $15,000, the obligation to be evidenced by a non-interest bearing promissory note. The $15,000 obligation was payable in monthly installments of $50 each for the first eight months and $100 each thereafter until it was fully paid. The first $7,500 of the obligation was to be paid regardless of petitioner's marital status, but the remaining $7,500 was to be paid only if petitioner remained unmarried. The 1959 judgment found the property settlement agreement to be fair, just and reasonable and ordered it 'approved and filed herewith.'

This suit for a declaratory judgment was filed by respondent. He had paid $7,500 on the obligation before he filed the suit. He alleged that the provision in the settlement agreement for payment of the remaining $7,500 'is nothing more than an agreement to pay alimony and is contrary to the law of the State of Texas, contravenes public policy of the State of Texas, and is void.' He prayed that the court declare 'that the conditional $7,500 * * * is unenforceable and void and that the note * * * be declared void.' The trial court denied respondent the relief he sought, and by its judgment the court declared the property settlement agreement, the note, and the 1959 judgment approving the agreement to be valid. At the request of respondent, the trial judge filed findings of fact and conclusions of law. Among other things, the trial judge found and concluded that at the time of the divorce respondent received all of the community property of the parties, including $2,500 in cash; that neither the agreement of respondent to pay $15,000, the note for that sum, nor the judgment approving the agreement imposed an obligation to pay alimony; that petitioner had never remarried, and that respondent was estopped to assert invalidity of the instruments. The court of civil appeals reversed the judgment of the trial court. In so doing, however, it did not decide whether the agreement and the note were valid or invalid; it declared only that the portion of the 1959 judgment which approved the provision for payment of $15,000 required the payment of alimony and was void. Tex.Civ.App., 407 S.W.2d 295.

The declaratory judgment rendered by the court of civil appeals does not fully dispose of the questions in the case. For, assuming for the moment that the portion of the 1959 judgment which approved the provision in the settlement agreement obligating respondent to pay $15,000 was, in effect, an order to pay alimony and therefore void, the question still remains whether the Contractual obligation is an obligation to pay alimony and equally void. Before a correct answer to this question can be formulated, we must answer a preliminary question: What is 'alimony'?

Courts have ascribed to the word 'alimony' different legal meanings, the meaning given usually being attuned to the particular fact situation with which the particular court was dealing. See cases cited in 3 Words and Phrases p. 178, et seq. (Perm.Ed.1953). The meaning which we deem to be correct and which is most comprehensive is found in the following excerpt from 24 Am.Jur.2d 641, Divorce and Separation § 514:

'In the English law the term 'alimony' was originally used to signify the allowance Judicially granted to a wife for support during a divorce a mensa et thoro (divorce from bed and board) or during separation, but it has come generally, in legal parlance, to include also the provision or allowance, whether periodical or in gross, Judicially made to a wife upon an absolute divorce * * *. Consequently, Every provision in a judgment of divorce or separation made solely for this purpose (food, clothing, habitation and other necessaries for support) is to be regarded as alimony, whether expressly designated as such or not, and irrespective of whether it requires payment of money at intervals or in a gross sum * * *.' ¹

The central idea to be drawn from the excerpt is that to be alimony the allowance to or provision for the wife's support, whether during pendency of the suit, during a divorce from bed and board (divorce a mensa et thoro), or after an absolute divorce (divorce a vinculo matrimonii), must have been made by a judgment or decree of a court. That this is so finds support in a host of decided cases. Examples: 'Generally the term 'alimony' is used to designate payments which the husband makes to the wife Under a court order for her support pending a divorce action or after a divorce has been granted.' Miller v. Miller, 88 Idaho 57, 396 P.2d 476, 479 (1964). 'Alimony is an allowance In a decree of divorce, carved out of the estate of the husband for the support of the wife.' Adler v. Adler, 373 Ill. 361, 26 N.E.2d 504, 508 (1940). 'Alimony, as that term is used in the law, is an allowance made for the support of the wife out of the estate of the husband By order of court in an appropriate proceeding, and is either temporary or permanent.' Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240, 242 (1964). 'Alimony is but the Judicial admeasurement of the husband's obligation to maintain his former wife periodically out of his income.' Madden v. Madden, 136 N.J.Eq. 132, 40 A.2d 611, 614 (1945). 'Alimony is an allowance which, By order of the court, the husband is compelled to pay the wife from the date he has been legally separated or divorced, for her support and maintenance.' Henderson v. Henderson, 37 Or. 141, 60 P. 597, 599, 61 P. 136, 48 L.R.A. 766 (1900). 'Comprehensively considered, that term (alimony) is generally used and understood by the courts and elsewhere as meaning an allowance to be paid by the husband to the wife for her support and maintenance, and often their dependent children, Pursuant to an order or decree by the court in a divorce proceeding.' Van Dommelen v. Van Dommelen, 218 Mich. 149, 187 N.W. 324, 325 (1922).

The foregoing authorities exclude the idea that a mere contractual obligation of a husband to make future periodic or lump sum payments for the support and maintenance of his wife is a provision for alimony. As a matter of fact, courts of other jurisdictions which recognize and authorize alimony after a divorce is absolute, as the law of this State does not, make a distinction between alimony and contractual obligations. Solomon v. Solomon, 149 Fla. 174, 5 So.2d 265 (1942); Mesler v. Jackson Circuit Judge, 188 Mich. 195, 154 N.W. 63 (1915); Miller v. Miller, 88 Idaho 57, 396 P.2d 476 (1964); Hayes v. Hayes, 191 Ga. 237, 11 S.E.2d 764 (1940); Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634 (1928); ...