Lemons v. Lemons

Decision Date06 November 1951
Docket NumberNo. 34445,34445
Citation238 P.2d 790,205 Okla. 485
CourtOklahoma Supreme Court

Syllabus by the Court.

1. In construing a judgment that is obscure or ambiguous, it is proper to consider the pleadings, verdict or findings, and the entire record in light of the applicable statutes.

2. When the wording of the judgment is not clear, it should be construed so as to carry out the evident purpose and intent of the action, rather than defeat it.

3. Record examined; held, that intention was to approve property settlement agreement between parties and that weekly payments therein provided for terminate upon death or remarriage of plaintiff.

4. Payments for support and maintenance of divorced wife past due under property settlement agreement are not enforceable by contempt proceedings.

5. One of the essential elements of res judicata is that the subject matter of the two controversies must be the same.

6. Party incorrectly designating payments due under the property settlement agreement as 'alimony', in a motion, is not later estopped to assert their true character.

R. N. Mountcastle, Muskogee, for plaintiff in error.

Chas. A. Moon, Muskogee, (Kay Wilson, Jr., Muskogee, of Counsel, on brief), for defendant in error.


The parties will be referred to as they appeared below, Dixie Lemons as plaintiff, and Sammy G. Lemons as defendant.

The plaintiff appeals from a judgment of the district court holding that it was without jurisdiction to cite the defendant for contempt, from an order granting defendant a jury trial, and from a judgment denying costs and attorneys fees.

On March 13, 1946, while married, the parties having determined 'they can no longer continue the marital relation', executed a property settlement agreement under which the defendant retained his business free from plaintiff's claims, so long as he made certain weekly payments, and the plaintiff acquired an automobile, certain U. S. Series E bonds, certain furniture and the defendant agreed 'to pay to the plaintiff for her support and maintenance the sum of $25.00 per week each and every week for a period of 23.81 years, or until the party of the second part has departed this life or has remarried.' It was also agreed that should divorce proceedings be instituted 'the term of this agreement may be entered as a part of any decree entered therein, should the parties so desire and should the same be termed necessary by the court in its order.'

The following day the plaintiff filed suit for divorce, alleging that the parties had entered into a partial property settlement 'which will be submitted to the court at the proper time, but in addition to that he should be ordered and directed and is amply able to pay the sum of Twenty-five and No/100 Dollars ($25.00) per week and to continue such payments during her life expectancy, which is 23.81 years.' April 11, 1946, defendant filed a waiver. On November 21, 1947, a divorce ws granted plaintiff. Defendant was not present or was his attorney. In the decree the court found that 'an agreement has been made, executed and delivered on the 13th. day of March, 1946, for the division of property of said parties, in settlement of all property rights of plaintiff in lieu of alimony, which is hereby approved and made a part of this decree. The court further finds that by virtue of said settlement, the defendant agrees to pay this plaintiff the sum of Twenty-five ($25.00) Dollars per week for the period of 23.81 years or until the party of the first part has departed this life or is remarried,' and that other portions of the contract had been performed. The court then 'Ordered and Adjudged that the defendant pay to the plaintiff by virtue of the contract in settlement of property rights and in full settlement of property rights so long as said Decree is obeyed, the sum of Twenty-five ($25.00) Dollars per week for the period of 23.81 years dating from March 13, 1946, and the Court finds from the testimony that the defendant has complied with that contract up until the 1st day of November, 1947, and that he is in arrears the sum of $100.00 to this date and he is therefore Ordered, Adjudged and Decreed to pay in the future, the sum of Twenty-five ($25.00) Dollars per weeks as alimony or property settlement or settlement of property rights, for a period of 1237.36 weeks and the same is hereby made a lien on the real estate of said defendant.' An attorney's fee was also awarded plaintiff's attorney which was eventually paid.

On January 7, 1949, the parties filed a clarifying stipulation agreeing that the decree called for only one payment of $25.00 per week. And by order dated January 21, 1949, a copy of the March 13, 1946, contract was attached to the divorce decree of November 21, 1947. In the interim, while represented by other counsel, defendant filed a motion to modify alimony agreement in which he alleged that the decree of alimony was beyond his means and unjust, that the property settlement agreement provided for alimony in an indefinite amount, $25 per week for 23.81 years or until plaintiff died or remarried, and that he expected the divorce decree to so provide. He then prayed that the judgment be corrected to conform to the contract, when so corrected that it be set aside, and that 'a judgment awarding alimony, if any, be entered in confomrity with the equities of the case.' On June 11, 1948, the district court sustained plaintiff's demurrer to that motion.

After the divorce, defendant paid plaintiff at most $50 per month, and on December 3, 1948 he was cited for contempt. There was a hearing on January 14, 1949, at the conclusion of which the court called for briefs. The court took the matter under advisement, and upon his suggestion that he would hold denfendant in contempt, a petition for a writ of prohibition, with application that this court assume original jurisdiction thereof, was filed and denied in case No. 34,024, on March 15, 1949. In the meantime, on February 18, 1949, plaintiff filed an amendment to her petition for citation for contempt, alleging, among other things, that defendant's failure to pay $25.00 per week was willful, an amended affidavit was filed, and these were attacked by motions to strike, to dismiss and by demurrer. A response was filed, defendant demanded a jury trial, and an order was entered granting him one.

On June 18, 1949, the district court held that it was without jurisdiction to try defendant for contempt and dismissed the amendment to the petition for citation and the citation. A motion for new trial was overruled, and from that judgment the plaintiff appeals to this court.

On May 15, 1949, plaintiff filed a motion for alimony pendente lite in the amount of $25 per week and for attorney's fee in connection with the contempt proceedings and the application for a writ of prohibition, and by a subsequent amendment for fees and expense in connection with this appeal. On September 2, 1949, the district court found that it had lost jurisdiction to fix attorney's fees, they having been fixed at a previous term, and overruled the motion and amendment. From that judgment the plaintiff also appeals to this court.

The plaintiff contends that the divorce decree of November 21, 1947, in ordering payment of $25 per week, was a judgment for the payment of alimony for the violation of which defendant was subject to contempt proceedings. She further contends that this is res adjudicata by virtue of the action of the district court in sustaining her demurrer to defendant's motion to modify alimony agreement, which was not appealed from, and by the action of this court in denying the application for a writ of prohibition. She also contends that defendant is estopped to deny that the decree awards alimony by himself characterizing it as such in the motion to modify alimony agreement.

On the other hand, the defendant contends that the $25 per week payment ordered is by virtue of the property settlement of March 13, 1946, approved by the court in the divorce decree, terminated upon the death or remarriage of the plaintiff, is therefore for an indefinite amount and therefore cannot be an award for alimony. He further contends that contempt proceedings will not lie for failure to comply with the terms of a property settlement. He denies that the doctrine of res...

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22 cases
  • Sommer v. Sommer
    • United States
    • Oklahoma Supreme Court
    • October 14, 1997
    ...are usually cited for the proposition that alimony in the nature of property division cannot be enforced by contempt. Lemons v. Lemons, 205 Okla. 485, 238 P.2d 790 (1951); Alexander v. Alexander, 526 P.2d 934, 935 (Okla.1974); Huchteman v. Huchteman, 1976 OK 174, 557 P.2d 427, 428 (Okla.197......
  • Panama Processes, S.A. v. Cities Service Co.
    • United States
    • Oklahoma Supreme Court
    • July 17, 1990
    ...v. Patton, Okl., 710 P.2d 108, 110 [1985]; McGaha v. Board of Regents of Univ. of Okl., Okl., 691 P.2d 895, 896 [1984]; Lemons v. Lemons, Okl., 238 P.2d 790, 794 [1951].11 The five plaintiffs in the Brazilian lawsuit were: Coprebras, Cities, Citco do Brasil Industria e Comercio Ltda, Columb......
  • Harris v. Harris
    • United States
    • Ohio Supreme Court
    • June 13, 1979
    ...260 N.W. 97; Dickey v. Dickey (1928), 154 Md. 675, 141 A. 387; Bushman v. Bushman (1929), 157 Md. 166, 145 A. 488; Lemmons v. Lemmons (1951), 205 Okl. 485, 238 P.2d 790; Goggans v. Osborn (C.A. 9, 1956), 237 F.2d 186, 189. See, also, 1 Nelson, Divorce and Annulment 537, Section 13.53; Stats......
  • Aven v. Reeh, 82865
    • United States
    • Oklahoma Supreme Court
    • July 19, 1994
    ...contain the signature of the judge. If possible we follow the clear language of an instrument when construing it. Lemons v. Lemons, 205 Okla. 485, 238 P.2d 790, 792 (1951). The clear language of the order sheet shows that we have a judge-signed order to the clerk to notify counsel of certai......
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