Haynes v. Haynes, s. 37619

• Decision Date: 10 December 1949
• Docket Number: Nos. 37619,37667,s. 37619
• Citation: 212 P.2d 312,168 Kan. 219
• Parties: HAYNES v. HAYNES.
• Court: Kansas Supreme Court

Page 312

212 P.2d 312

168 Kan. 219

HAYNES v. HAYNES.

Nos. 37619, 37667.

Supreme Court of Kansas.

Dec. 10, 1949.

Syllabus by the Court

1. Following Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561, and other decisions cited in the opinion, it is held (1) the district court is without power to change or modify orders for past due installments for the support and education of minor children and (2) such orders when due and unpaid become final judgments and may be collected in the same manner as other judgments.

2. Judgments in contempt proceedings rest within the sound discretion of the trier of the facts and will not be disturbed on appellate review unless abuse of discretion clearly appears from the record.

3. The record in consolidated actions for revivor of a judgment for past due child support installments and a contempt proceeding for failure to make them in compliance with a divorce decree examined and it is held the trial court (1) erred in holding such installments were not final judgments and in refusing to ascertain whether their status was such that they could be revived as dormant judgments, (2) properly refused to ascertain the total amount of such past due installments and render another judgment thereon in the contempt proceeding, and (3) did not abuse its discretion in refusing, under the conditions and circumstances set forth in the opinion, to find the defendant in the contempt proceeding guilty of contempt.

Howard A. Jones, of Topeka, argued the cause, and Charles L. Davis, Jr. of Topeka, on the briefs, for appellant.

Frank E. Miller, of Topeka, argued the cause and was on the briefs for appellee.

PARKER, Justice.

This is the aftermath of a divorce action. The appeal in case No. 37,619 is from an order of the district court of Shawnee county overruling a motion to revive an alleged judgment for child support while case No. 37,667 involves an appeal from an order of the same tribunal adjudging the defendant in the divorce action not guilty of wilful contempt of court in having failed to make all the monthly payments of alimony and child support money required by the terms of the divorce decree. The two appeals have been consolidated and hereafter will be so treated.

The basic pertinent facts, except as they relate to the ability of appellee, who was the defendant in the court below, to make the payments in question, are not in controversy. They are, however, important to a review of all issues involved and for that reason will be stated as briefly as possible.

The parties were divorced by decree of the district court of Shawnee county on March 3, 1936, The appellant here was the plaintiff in that action. She was given all of the property belonging to the parties with the exception of a mortgaged automobile and was awarded permanent alimony in the sum of $1500 payable at the rate of $17.50 on the 5th and 20th of each month commencing March 20, 1936, such payments to cease forthwith in event of her death or remarriage. She was also given the custody of the two minor children of the parties. The appellee was directed, subject to further orders of the court, to pay $25 on the 5th and 20th of each month for the support of such children. By express terms of the decree all payments were to be made to the clerk of the district court.

From the record we are able to ascertain, and here note, the manner in which appellee complied with the requirements of the decree. From May 4, 1936, to January 1, 1938, twenty-three payments, ranging from $17.50 to $42.50 were paid to the clerk of the court. From February 5, 1938, to May 5, 1938, seven payments, one for $20 and six for $42.50, each was paid directly to the appellant. Between December 16, 1938, and May 21, 1948, appellee paid the clerk ninety-two payments, most of them being for $35 although it should perhaps be stated that one was as low as $7.50 while another was as high as $70.00.

The foregoing payments are all credited to appellee on the clerk of the court's alimony docket. In addition, the parties have stipulated that from 1937 to 1943 appellee paid $345.50 to appellant personally. Appellant likewise admits that three payments of $42.50 each were made by appellee in 1936 and were received by her from the clerk of the court even though they are not shown on the official's record. Neither the alimony docket nor the stipulation, or for that matter the evidence, make it clear how the payments heretofore described amounting to $4353 were to be applied. At one point in the record appellant states they were paid on the order and judgment for alimony and child support. However, in a later statement the asserts appellee was in default $1700 on payments of child support accruing from October 15, 1943, to the date of the filing of the contempt accusation on October 15, 1948, and concedes that he had paid $1300 on that account during such period of time. She is bound by that concession. Therefore, since they antedate the contempt proceeding, we proceed on the assumption that all payments made subsequent to October 15, 1943, must be regarded as having been paid on the order for child support.

It likewise appears from the record that for 12 years after the divorce decree was rendered in 1936 the appellant took no legal steps to enforce payment of the alimony judgment nor payment of the full amount of the child support order and that the first attempt of that character ever made by her was through the issuance of an execution, dated September 10, 1948, directed to the sheriff of Saline county, Kansas, and later returned unsatisfied, for satisfaction of a judgment therein alleged to have been entered on March 3, 1936, in the sum of $4822, which sum obviously included all alimony and child support payments claimed by her to be due under terms of the divorce decree up to the date of the issuance of such process.

On September 24, 1948, appellant filed a motion in the original divorce action to revive the judgment which reads as follows:

'Comes now the plaintiff above named and moves the court for an order reviving judgment for child support payments which became due on the fifth and twentieth days of each month, in amounts of Twenty Five Dollars ($25.00) on each of the said days of each month, between October 5, 1941, and September 20, 1943, inclusive, according to the terms of this court's judgment entered on March 3, 1936.'

As has been previously indicated the overruling of this motion is one of the matters now subject to appellate review.

Following the trial court's action on the motion to revive appellant instituted the contempt proceeding. The accusation reads:

'Comes now Emily L. Haynes, plaintiff in the above entitled action, and charges that the defendant, Floyd Y. Haynes, has knowingly disobeyed and violated the orders of this court in the following respects, to wit:

'1. That on the 3rd day of March, 1936, the court rendered judgment against the defendant in the above entitled action and ordered him to pay the sum of Fifteen Hundred Dollars ($1500.00) permanent alimony, and the sum of Fifty Dollars ($50.00) per month as child support money.

'2. That the said defendant was present at the trial of the cause, was represented by an attorney, and had actual knowledge of the judgment of the court and was familiar with the contents thereof.

'3. That said order has not been reversed, modified, or set aside, but has been at all times since last mentioned date, and still is, in full force and effect.

'4. That notwithstanding the premises, the said defendant, Floyd Y. Haynes, has knowingly, willfully, and contemptuously refused to obey the same and has failed to make the payments as ordered by the court.

'5. That a dispute now exists as to the amount which the defendant is in arrears in payments of alimony and child support money which are due to the plaintiff, and that the court should determine the amount due.

'6. That by reason of the failure of the said defendant to obey said order of the court, the authority of the court and respect to the court has been impaired, and the plaintiff has been put to inconvenience and has suffered the expense of bringing this action and employing counsel for the same.

'Wherefore, plaintiff prays that said defendant be adjudged guilty of indirect contempt of court and punished in such manner as may seem proper to the court, and that the court determine the exact amount due and owing from the defendant to the plaintiff; and that the defendant be ordered to pay the costs of this action, including attorneys' fees for the plaintiff's attorneys.'

Shortly after appellee appeared in court to answer the contempt accusation his counsel dictated the following answer into the record:

'Comes now Floyd Y. Haynes, the defendant in the above entitled case and for his answer to the accusation filed herein denies each and every allegation therein contained. That said defendant denies that he is guilty of willful contempt of court as charged in said accusation. That no execution was issued on the judgment set forth in said accusation prior to September 11, 1948; that all sums due under the judgment of March 3, 1936, are barred by the statute of limitations other than any amount remaining due and unpaid for five years from this date.

'Wherefore defendant prays that he be discharged.'

During the contempt hearing counsel for appellant requested that the court determine the amount due and owing from appellee for support money under the divorce decree and that when it was determined he be directed to pay it or that she be given judgment therefore as of that date. This request was denied. The court then proceeded with the trial on the contempt proceeding proper. After hearing the evidence and arguments of counsel it found appellee not guilty of contempt. Thereupon, appellant filed a motion for a new trial which was overruled. She then perfected her second appeal challenging the propriety of the rulings of the district court...