Greeson v. Greeson
| Citation | 208 Okla. 457,257 P.2d 276 |
| Decision Date | 07 April 1953 |
| Docket Number | No. 34634,34634 |
| Parties | GREESON v. GREESON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A court order entered by consent of the parties, modifying an order for child support retroactively, is in the nature of a contract, and in the absence of any fraud in procuring the consent order, it is binding on the parties.
2. A consent order being regarded as a contract between the parties, must be construed as any other contract; its operation and effect must be gathered from the terms used therein and the order should not be extended beyond the clear import of such terms, nor can it be supplemented by agreements which are not a part of it, unless attacked for fraud or mistake.
3. Where a consent order modifying an order for child support recites, 'Said decree be and the same is hereby modified awarding plaintiff the sum of $40.00 per month in lieu of all other sums and in lieu of the $15.00 per week provided for therein', and a controversy arises whether such consent order relieved the defendant of liability for unpaid installments of support money accrued prior to the entry of the consent order, a judgment of the trial court denying recovery of such installments will not be disturbed on appeal where the evidence reasonably supports such judgment.
George H. Jennings, Sapulpa, for plaintiff in error.
Streeter Speakman, Jr., Sapulpa, for defendant in error.
There is virtually no dispute about the facts in this controversy. On May 18, 1940, the plaintiff in error, hereinafter referred to as plaintiff, was granted a divorce from the defendant in error, hereinafter referred to as defendant. She was given the custody of the three then minor sons of the parties and the defendant was ordered to pay plaintiff $15 per week for child support.
On February 15, 1941, the plaintiff remarried and she, her husband and the three minor children moved to California where they resided at the time of this trial. On September 17, 1942, the defendant enlisted in the U. S. Navy where he served until his discharge on September 18, 1945.
The defendant made no payments to the plaintiff for the support of the children which the divorce decree ordered him to make. However, by virtue of and during his service in the Navy the plaintiff received from the United States Government 10 monthly allotments of $43.70 each and 10 monthly allotments of $70 each.
During 1946 the oldest boy became self-supporting and the parties commenced negotiations with reference to the amount the defendant should pay the plaintiff for the support of the two younger boys. The plaintiff demanded $50 and the defendant offered $30 per month. The plaintiff consulted her attorney in Richmond, California, and the defendant consulted his attorney in Sapulpa, Oklahoma. In an exchange of letters between the attorneys it was agreed that the defendant should pay $40 per month, and to make the agreement binding on both parties, the defendant's attorney suggested that the matter be handled through an agreed court order modifying the original decree. He prepared and forwarded to plaintiff's attorney a proposed order for his and plaintiff's approval and for plaintiff's signature. After consulting with and upon advice of her attorney the plaintiff signed the proposed order and it was returned to the defendant's attorney for presentation to the court. On December 21, 1946, the court signed the order so approved in writing by the plaintiff and the defendant, which is as follows:
'This matter coming on to be heard on application of defendant, Ray Greeson, to modify divorce decree entered in the above entitled cause on the 18th day of May, 1940, in so far as it affects the order for support for the children of said marriage.
'And it appearing to the court that the eldest child, to-wit, Charles Ray Greeson, is now in the military service of the United States and is self-supporting and that the decree providing for the payment of $60.00 a month should be modified.
'It is therefore ordered, adjudged and decreed by the court that said decree be and the same is hereby modified awarding plaintiff the sum of $40.00 per month in lieu of all other sums and in lieu of the $15.00 per week provided for therein, the first payment of $40.00 to be paid on January 1, 1947, and on the first day of each month thereafter until further order of the court.
'Done in open court this 21st day of December, 1946.
'C. C. Beaver, District Judge
'O.K.'d
'Opal Greeson
'Ray T. Greeson'
Following the entry of the above agreed order and commencing January 1, 1947, to and including September 3, 1949, the defendant paid the plaintiff $40 each month, except three payments which the plaintiff said she did not receive.
On August 20, 1949, the second son of the parties was married and became self-supporting and on September 23, 1949, the defendant filed a motion to modify the agreed order of December 21, 1946, by reducing the payments from $40 to $25 per month in view of the change in condition. The plaintiff filed a response to this motion and also filed an application for an order determining the amount of unpaid installments which matured between May 18, 1940, the date of the divorce decree, and January 1, 1947, as well as the amount unpaid under the agreed order of December 21, 1946, and prayed for judgment against the defendant for the amount so found to be due.
After introduction of evidence establishing the above facts, the trial court rendered judgment modifying the order of December 21, 1946, by reducing the amount of child support from $40 to $30 per month and also rendered judgment in favor of the plaintiff for $120, being the amount of three installments under the order of December 21, 1946, which the court found to have been unpaid. No complaint is made about this part of the judgment. The trial court further found 'that the plaintiff is not entitled to recover any further sum' and refused to render judgment for any of the unpaid installments which accrued prior to December 21, 1946, the date of the agreed order. It is from this part of the judgment that plaintiff appeals.
Plaintiff contends that the order of December 21, 1946, insofar as it operates retroactively to relieve the defendant of liability for the unpaid installments accrued prior to the entry of the order, is void because the court was without authority to make such an order.
With this contention we agree. Under 12 O.S. 1941 § 1277 the court has authority to modify an order for child support prospectively. The court does not have authority to make the modifying order operate retroactively. Sango v. Sango, 121 Okl. 283, 249 P. 925; Reynolds v. Reynolds, 192 Okl. 564, 137 P.2d 914. Threfore, if the order of December 21, 1946 had been entered by the court upon the merits after a trial of the issues it would have been void insofar as it had the effect of relieving the defendant of liability for unpaid installments accrued up to the time of the entry of the order.
However, it is agreed that the order of December 21, 1946 was a consent order entered by the court upon the agreement and consent of the parties. While in its retroactive aspect it is void as a court...
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