Keach v. Keach

• Decision Date: 25 January 1927
• Citation: 217 Ky. 723,290 S.W. 708
• Parties: KEACH v. KEACH.
• Court: Kentucky Court of Appeals

290 S.W. 708

217 Ky. 723

KEACH v. KEACH.

Court of Appeals of Kentucky.

January 25, 1927

Appeal from Circuit Court, Christian County.

Suit for divorce by Roberta Keach against H. A. Keach. Petition filed for reduction of alimony allowed to wife by decree granting her divorce. Affirmed.

W. H Southall, of Hopkinsville, for appellant.

White &amp Clark, of Hopkinsville, for appellee.

McCANDLESS J.

In a suit in the Christian circuit court, Roberta Keach sought a divorce from her then husband, H. A. Keach. Proof was taken upon the grounds of divorce, and this was granted to the wife. An agreement was entered into by the parties as to alimony, maintenance, and other property rights, it being further agreed that this should be entered as the judgment of the court, which was accordingly done. By the terms of that agreement and judgment, Mrs. Keach was allowed, and Mr. Keach was directed to pay her as alimony, the sum of $150 per month so long as she lived and remained unmarried, and, in the event that she survived him, she was to be paid the lump sum of $15,000 by his estate at his death. If she died or remarried before his death, the monthly allowances were to cease and her estate to receive nothing further from him, in consideration of which she surrendered and released all rights in, and claims to his property, which seems to have been considerable. In the agreed judgment she was also given the custody of their infant daughter, aged 14, and he was directed to pay her the sum of $75 a month for the maintenance of this child. It was further adjudged:

"That the case be stricken from the docket with leave to reinstate without notice, and to make such orders as to the infant child as from time to time might appear for the best interests of the child."

That judgment was entered on the 21st of June, 1922. Apparently H A. Keach complied with the conditions of the judgment. However on the 26th of March, 1926, by a pleading filed in the original suit, he sought to have the monthly allowances to his former wife reduced from $150 per month to $75 per month, alleging that the judgment was entered at a time of price inflation and when business generally was good; that there had been a gradual shrinkage in values during the past four years, and that profits on all business including his own--a mercantile establishment--has materially decreased. For the reasons stated, he was able to make the payments without financial sacrifice at the time of the decree, but is not now able to do so. He further alleged that the daughter is now married and supported by her husband, and is no longer a care upon her mother, though he does not allege that he has paid any part of the allowance for the latter's maintenance since her marriage. The lower court sustained a demurrer to the petition upon which his failure to plead further was dismissed, and he has appealed.

The rule in this jurisdiction is that a judgment for alimony in a lump sum becomes final after adjournment of the term of court at which it is rendered, and cannot thereafter be modified unless the court in its judgment retains the right to do so. Scott v. Robertson, 212 Ky. 392, 279 S.W. 625. See, also, 19 C.J. 616, p. 269. And the same rule prevails where the payment is made in installments, if the judgment for alimony is a sum in gross. Jones v. Jones, 216 Ky. 810, 288 S.W. 737. In cases of allowance for maintenance, the right to modify an allowance at a subsequent term of court to meet the changed conditions of the parties is recognized by statute. Sections 2121 and 2123, Ky. Statutes. And the same principle has been followed in judgments for alimony in divorce cases, both in actions a mensa et thoro and a vinculo matrimonii, where installment payments are allowed and no gross sum is fixed. Sebastian v. Rose, 135 Ky. 197, 122 S.W. 120; Logan v. Logan, 2 B. Mon. 150; Simpson v. Simpson, 201 Ky. 282, 256 S.W. 412; Bristow v. Bristow (Ky.) 51 S.W. 819; Staton v. Staton, 164 Ky. 688, 176 S.W. 21, L. R. A. 1915F, 820; Kelley v. Kelley, 209 Ky. 223, 272 S.W. 757. It will be observed, however, that in this case the parties agreed and settled their property rights and further agreed that such settlement was to be entered as the judgment of the court, and that this was done. It will further be observed that the parties had in mind a lump sum of $15,000, which was to be paid appellee at the death of her husband, if she survived him; the interest on this sum being almost equivalent to the monthly payments, though the payments should cease upon her death. There is no intimation that this settlement was not fairly made and voluntarily entered into by both parties, with the full knowledge of their mutual property rights. It is not claimed that there was any mistake in the agreement, or that it was contemplated for any subsequent change to be made therein, or that the judgment differed therefrom in any respect. In a long line of cases we have held that such agreements are in line with public policy, and will be upheld and enforced by this court. Parsons v. Parsons, 62 S.W. 719, 23 Ky. Law Rep. 223; Branch v. Branch, 98 S.W. 1004, 30 Ky. Law Rep. 417; Hayden v. Hayden, 215 Ky. 299, 284 S.W. 1073; Loud v. Loud, 4 Bush. 453.

It is argued, however, that, when an agreement and settlement of the property rights are entered as a judgment of court, it stands upon the same footing as any other judgment of the chancellor, and is governed by the same rules that would apply if it were based on his own conclusions; that this decree was for alimony in installments, and can therefore be modified at a subsequent term of court. We fail to see the force of this reasoning. Certainly the validity of the original agreement is in no wise impaired by the verity imparted to it in being made a judgment...