Kuert v. Kuert, 5973

• Decision Date: 03 January 1956
• Docket Number: No. 5973,5973
• Parties: William F. KUERT, Appellant, v. Florence KUERT, Appellee.
• Court: New Mexico Supreme Court

Page 115

292 P.2d 115

60 N.M. 432

William F. KUERT, Appellant, v. Florence KUERT, Appellee.

No. 5973.

Supreme Court of New Mexico.

Jan. 3, 1956.

Carpenter, Eaton & Phelps, Roswell, for appellant.

Frazier, Cusack & Snead, Roswell, for appellee.

KIKER, Justice.

Two questions are framed by this appeal the first of which is one of first impression in this jurisdiction. 1.) Does the trial court have the power retroactively to abate accrued alimony payments from the date of the wife's remarriage? 2.) If the first question be answered in the affirmative, did the trial court's failure to abate the alimony payments accruing subsequent to the wife's remarriage constitute error in the instant situation?

The facts pertinent to this appeal may be summarized as follows: The parties were divorced by the District Court of Chaves County by its decree of November 19, 1951, which ordered plaintiff, husband, to pay $150 per month support money to defendant, wife, 'until the further order of this Court.' On July 7, 1953, defendant became the legal wife of one Frank Miller. Plaintiff made alimony payments in accordance with the order of the divorcing court until August 4, 1953, approximately one month after defendant's remarriage. On May 18, 1954, plaintiff filed a motion to modify the divorce decree with respect to the support payments by reason of defendant's remarriage. The action was tried below upon stipulated facts and issues; no testimony was received. The trial court made findings of fact and conclusions of law and entered judgment relieving plaintiff of alimony payments from the date of the filing of his motion to modify, but requiring plaintiff to pay defendant $1,350 in alimony accrued subsequent to defendant's remarriage and prior to plaintiff's motion for modification.

The question of the power of a court retrospectively to modify alimony provisions has been frequently adjudicated in other jurisdictions; see the exhaustive annotation at 6 A.L.R.2d 1278. Examination of these cases reveals the achievement of contrary results as between different states and in some instances apparently contradictory decisions on certain aspects of the question within the same jurisdiction. Classification of the factors involved in the decisions with reference to their effect on the result reached proves unrewarding. Statutes whose wording is materially the same have been said in one jurisdiction to grant the power retrospectively to modify alimony and in another to withhold it; there appear to be no words of art which consistently are held to affirm or deny such power. A decision that the power of the court to modify alimony is inherent in the court rather than derived from statute does not achieve uniform results. Reservation of jurisdiction in the decree of the divorcing court is another factor which proves useless as a guide appearing, as it does, in decisions which reach varying results. In some of the jurisdictions which deny the court's power to modify accrued alimony, the court may, for equitable reasons, refuse to enforce the payment of such arrears; other exceptions to their own rule have become established in certain of these jurisdictions. The question has received attention from the authors of bar review articles and texts; see, for example: 40 Georgetown Law Journal 335; 4 Utah Law Review 280; 38 Virginia Law Review 106; 26 North Dakota Bar Briefs 308; 6 Maryland Law Review 238; 2 Nelson on Divorce and Annulment (2d Ed.) 420. The 'better rule' is thought by one of these writers to be that a court does not have the power retroactively to modify alimony provisions, and by another, that the court does have such powers; much of the area between these two extreme boundaries of opinion is staked out by other authors. Study of the case law from sister jurisdictions and the legal literature on the subject leads to the conclusion that these cases have turned on social and policy considerations rather than on a traditional construction of the statutes involved; a review of these considerations is, therefore, indicated.

There is general agreement that alimony is not ordered as a punishment imposed upon an erring spouse, but regardless of wrong in order that divorced persons shall 'not become public charges or derelicts' 6 Law and Contemporary Problems 250, 251. Those opposing power in the courts retroactively to modify alimony have suggested the following considerations: A wife dependent for her support on alimony ought to be protected in her reliance thereon. Should she have obtained credit on the basis of accrued alimony she should not be prejudiced by her husband's failure, circumstances having changed, to make timely application for modification. Even the divorced wife's psychological reliance on accrued payments reflected in her personal plans has been suggested as a condition perhaps worthy of protection. If the payments are not final upon accrual the husband may deliberately default in the hope that the court will let him off easily, while the wife will tend to litigate every installment as it falls due, whereas she might otherwise give him a period of grace beneficial to both parties. It is frequently said that in view of the increasing mobility of the people of this nation an alimony decree which does not require enforcement beyond the borders of the divorcing state is of little value; this may be termed the 'Sistare Argument' and will be considered later.

Those courts and authors of legal literature which favor the existence of power in the courts retrospectively to modify alimony awards have discussed the following points: The very nature of alimony demands that it be modifiable, not only prospectively but retroactively or we '* * * [defeat[s] the rule that the maintenance afforded the separated wife through alimony is not to be greater than what she would have enjoyed in cohabitation.' Winkel v. Winkel, 1940, 178 Md. 489, 500, 15 A.2d 914, 919; see, also, 2 Vernier, American Family Laws 274, 275 (1932). The decisions in cases involving the remarriage of the divorced wife have made declarations along the following lines: The divorced wife's remarriage gives rise to the inference that she has elected to receive support from her new husband and has chosen to abandon the provision for her support in the alimony award. The remarriage of the wife may be deliberately secret or circumstances may make unlikely or near impossible the former husband's learning of the remarriage, therefore it is unreasonable to demand that he move, immediately upon such remarriage, for a modification of the alimony award. Many laymen believe that the remarriage will of itself end the duty of support without further action on his part, and, as Chief Justice Washington noted in his dissent in Kephart v. Kephart, 1951, 89 U.S.App.D.C. 373, 193 F.2d 677, 690 'not all divorced husbands are lawyers.' These courts have declared, with considerable asperity, that the circumstances ought to be unusual indeed if the law is to require the ex-husband to join the current husband in the support of one woman.

Excepting, for the moment, the 'Sistare Argument' it is clear that the social and policy considerations outlined above as representative of those expressed by courts and writers denying the power of the courts retrospectively to amend alimony awards are amenable to consideration and susceptible to enforcement by a court which has such power. A determination that our courts have such power and thus possess a power flexible enough to afford justice in the multitude of fact situations presented may be said fairly to mean that 'individual justice is substituted for what could be standardized hardship.' 1954 Wisconsin Law Review, 522, 524.

This being true, why has there not been universal adoption of the rule that the courts do have the power retrospectively to modify alimony awards? The answer is: the 'Sistare Argument.' This argument may be stated: Installments of alimony either vest when they fall due or they do not. If they vest then they may not later be divested. It is necessary to hold that such payments do vest as they accrue if the order for payments of alimony is to be treated as a final judgment in respect to such installments to which a sister state is required to give full faith and credit under Sistare v. Sistare, 1909, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905.

In the Sistare decision, 218 U.S. at pages 16 and 17, 30 S.Ct. at page 686 the court said:

'* * * generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments, since, as declared in the Barber Case, 'alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.' * * * This general rule, however, does not obtain where, by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the instalments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the instalments becoming due.'

At page 22 of 218 U.S., at page 688 of 30 S.Ct., the court declared that:

'* * * every reasonable implication must be resorted to against the existence of such power, in the absence of clear language manifesting an intention to confer it.'

Thus the Sistare decision promulgates a test to determine whether full faith and credit must be given to a sister state's alimony order, which rests on an inquiry as to the power of the divorcing state's courts...