Glynn v. Glynn

• Decision Date: 08 December 1898
• Docket Number: 6731
• Citation: 77 N.W. 594,8 N.D. 233
• Court: North Dakota Supreme Court

77 N.W. 594

8 N.D. 233

LUCIUS GLYNN v. CARRIE S. GLYNN

No. 6731

Supreme Court of North Dakota

December 8, 1898

Appeal from District Court, Cass County; Pollock, J.

Action by Lucius Glynn against Carrie S. Glynn for divorce. Judgment for plaintiff. Motion to attach plaintiff for contempt in failing to pay alimony. From an order directing plaintiff to be committed until alimony was paid, he appeals.

Reversed.

Reversed.

Newman Spalding & Stambough, for appellant.

This divorce was not granted for an offense of the husband, but for an offense of the wife, therefore the order of the Court cannot be sustained. § 2761, 2762, Rev. Codes; Bishop on Marriage and Divorce, § 564; Palmer v. Palmer, 1 Paige Ch. 277; Perry v. Perry, 2 Barb. Ch. 311; Everett v. Everett, 52 Cal. 383. The judgment could be enforced by execution. §§ 5500, 5501, Rev Codes; Anonymous 12 Abb. N.C. 160; Barber v. Barber, 21 How. U. S. 582. But it cannot be enforced by a contempt proceeding. Lansing v. Lansing, 4 Lans 377; Miller v. Miller, 7 Hun, 208; Gray v. Cook, 24 How Pr. 432.

Young & Burke, for respondent.

In divorce cases the Court will as a rule adopt an agreement entered into by the parties if just and equitable. Daggett v. Page, 28 Am. Dec. 442; Petersine v. Thomas, 28 Ohio St. 596; Calame v. Calame, 24 N.J. 440; 2 Am. & Eng. Enc. L. (2nd Ed.) 127. The Court having adopted the agreement of the parties they are concluded thereby. Buck v. Buck, 60 Ill. 242; Storey v. Storey, 125 Ill. 608; 8 Am. St. Rep. 417. So long as such a judgment remains unreversed the defendant is bound even though the judgment is erroneous. State v. Jamison, 72 N.W. 452. The wife has been allowed alimony upon a divorce at the husband's complaint. Ex parte Perkins, 18 Cal. 60; Pollock v. Pollock, 9 S.D. 48, 68 N.W. 176; Gaines v. Gaines, 19 S.W. 292. The most common method of enforcing orders or decrees for alimony is by attachment for contempt. Park v. Park, 80 N.Y. 156; Staples v. Staples, 58 N.W. 1036; Galland v. Galland, 44 Cal. 475; Potts v. Potts, 36 N.W. 240; 1 Enc. Pl. & Pr. 437; Ex parte Hart, 94 Cal. 254; Ex parte Gordon, 95 Cal. 374.

OPINION

BARTHOLOMEW, C. J.

In 1895 the plaintiff brought an action in the District Court of Cass county to obtain a decree of divorce from the bonds of matrimony then and theretofore existing between plaintiff and defendant. The cause of action, as set forth in the complaint, was cruel and inhuman treatment. The defendant appeared and answered, denying all cruel and inhuman treatment on her part. On September 7, 1895, the parties, by their attorneys, entered into a stipulation as follows: "The plaintiff and defendant in the above-entitled action hereby waive findings of fact and conclusions of law upon the trial therein; and it is further stipulated that it may be ordered and decreed in said cause that the said plaintiff shall pay to the said defendant on the 1st day of each and every month, commencing with the month of November, 1895, the sum of thirty dollars ($ 30), during the remainder of said defendant's life, or so long as said defendant shall remain unmarried, and, further, that the said plaintiff shall care for, maintain, support, and educate the said minor child, C. Edward Glynn, issue of said marriage. And it is further stipulated that said action may be tried on the 7th day of September, 1895, and decree ordered therein on that date." On the same day the Court made an order for judgment and decree in the following language: "This cause coming on to be heard on the 7th day of September, 1895, the respective parties having stipulated that the same shall be heard upon that date, upon the complaint of the plaintiff, and the answer of the defendant, and the evidence of the plaintiff and his witnesses, adduced on the part of the plaintiff, plaintiff being represented by Newman, Spalding & Phelps, his attorneys, and present in person, and defendant being represented by Fred B. Morrill, Esq., her duly-authorized attorney, and said defendant having made a general appearance in said action by said Fred B. Morrill, and the Court thereby having acquired jurisdiction of the subject-matter in controversy and of the defendant, and the Court having duly considered the evidence adduced, and having found all the allegations in said complaint sustained by competent evidence, and the respective parties having waived findings of fact and conclusions of law, and the respective parties having stipulated that an order be entered in said cause directing that the plaintiff pay to the defendant the sum of thirty dollars ($ 30) on the 1st day of each and every month, commencing with the month of November, 1895, during the remainder of her life, or so long as she shall remain unmarried, and, further, that the said plaintiff shall provide for the proper maintenance and education of the said minor child, C. Edward Glynn, the Court finds that said plaintiff is entitled to a judgment for divorce herein from the defendant herein, dissolving the said bonds of matrimony between himself and said defendant, and releasing the parties thereto, and each of them, from said bonds, and from all obligations thereof. Now, on motion of Newman, Spalding & Phelps, attorneys for said plaintiff, it is ordered that judgment be entered accordingly." On September 24, 1895, a judgment was entered in pursuance of the order, which, after the recitals, reads: "It is ordered and adjudged that the said plaintiff herein be, and he is hereby, divorced from the defendant, and the bonds of matrimony between plaintiff and defendant are hereby dissolved, and they, and each of them, are released and freed therefrom and from all obligations thereof; and the said plaintiff is directed to pay the said defendant the sum of thirty dollars ($ 30) on the 1st day of each and every month, commencing with the month of October, 1895, during the remainder of her life, or so long as she shall remain unmarried, and, further, that said plaintiff shall provide, care for, maintain, and educate the said minor child, C. Edward Glynn." On December 13, 1897, the District Court of Cass county issued an order on plaintiff to show cause why he should not be attached, as for contempt of court, for failing to pay alimony to defendant as directed by the order of September 24, 1895. On the return day of the order, plaintiff appeared specially, and moved to dismiss the proceedings upon the following ground: "Because the judgment in said action was in favor of the plaintiff therein, and the Court has no power to enforce a judgment for permanent alimony in favor of the defendant (the defendant not being the innocent party, as shown by said judgment) by attachment, or by any other method or proceeding other than by execution." The motion to dismiss was denied, and the matter involved in the order to show cause was submitted on its merits, each party filing affidavits. The Court entered an order declaring plaintiff guilty of a contempt of court, in failing to comply with the order requiring the payment of money, and in failing to support and educate the minor son. The Court found the sum of $ 580 to be in arrears, and directed that plaintiff be committed to the jail of Cass county until said sum was paid, or he was otherwise discharged according to law. From this order plaintiff brings this appeal.

We do not understand that any imprisonment was ordered by reason of plaintiff's failure to maintain, fare for, and educate his minor son, although the Court adjudges him in contempt upon that ground, also. Even in this the Court was clearly wrong. First, it does not appear that plaintiff has not fully provided for his son. The lad was 19 years old when these contempt proceedings were instituted. He had been attending an academy in Vermont. The father wrote him that he would pay his expenses, if he could, and there is nothing to show that he has not done so. True, he has not sent the money to the son, but that was not necessary. But, further, the divorce decree did not give the defendant the custody of the son. It is not mentioned in the decree. The father is directed to "provide, care for, maintain, and educate" the son. But that duty rested upon him before. It was no stronger after it was recited in the decree, nor was the character of the duty changed. The father might still provide for and educate his son in such manner and at such place as he saw proper, provided it reasonably comported with his ability. It is undisputed in this case that the father requested the son to join him at his home, in Valley City, in this state, and offered to place him in the normal school at that place, and properly care for him. To this the defendant, or the son, or both, refused to assent. The father is not required to support the son in idleness in Vermont. The only reason that we can assign for the presence of that provision in the stipulation between the parties and in the decree is the fact that both parents were in law bound to support their minor son. The mother desired, as between themselves, to throw the entire charge upon the father, and he was willing to accept it, and so contracted. If now the mother should be required to contribute from her own means for the support or education of the son, she could undoubtedly recover the amount contributed by her from the father, by reason of his contract. If the decree had given the defendant the custody of the minor child, and directed that the father pay her a specified sum for the support and education of the child, the question would be altogether different.

Appellant contends that the amount specified in the decree to be paid by plaintiff to defendant is in no sense of the word alimony that it is, in effect, a money judgment on contract, possessing no greater sacredness, and...