Lewis v. Lewis

• Decision Date: 14 August 1991
• Docket Number: No. 90-CA-0195,90-CA-0195
• Citation: 586 So.2d 740
• Parties: Milton LEWIS v. Minnie Lee LEWIS.
• Court: Mississippi Supreme Court

Page 740

586 So.2d 740

Milton LEWIS v. Minnie Lee LEWIS.

No. 90-CA-0195.

Supreme Court of Mississippi.

Aug. 14, 1991.

Rehearing Denied Oct. 23, 1991.

Wm. Andy Sumrall, Jackson, for appellant.

Billy W. Keyes, James W. Younger, Jr., Keyes Danks Moss & Leonard, Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

I.

Minnie Lewis instituted this action to hold Milton Lewis in contempt of court for the non-payment of temporary alimony and medical bills due and owing. Milton Lewis claimed that he did not owe temporary alimony to his wife pursuant to the property settlement agreement between the parties. The Chancery Court of Hinds County, Second Judicial District, found Milton Lewis to be in contempt of court awarding a judgment against him for $1,700.00 in temporary alimony and $511.81 in medical bills. Finding no error in the lower court's ruling, we affirm.

II.

Minnie Lewis filed a Complaint for Divorce against Milton Lewis in the Chancery Court of Hinds County on June 24, 1987. On August 14, 1987, the parties entered into an agreed temporary order that provided that Milton Lewis would pay his ex-wife $550.00 per month as temporary alimony.

On July 12, 1988, the parties entered into a property settlement agreement pursuant to their divorce on grounds of irreconcilable differences. The settlement provided in part:

10. Both parties hereby certify and stipulate that this Property Settlement Agreement contains the entire agreement and understanding of the parties, and there are no other agreements between them not set forth specifically herein, and each party hereby agrees that this Separation and Property Settlement Agreement fully, finally, and forever settles all rights, claims, and demands by either of them for support, alimony, maintenance, expenses and any other rights and obligations arising out of the marriage relationship.

11. Husband and Wife respectfully hereby relinquish and release each and every right and privilege they now have or may hereafter acquire from each other as a result of said marriage.

This agreement was incorporated into the final judgment of divorce entered on July 13, 1988.

On August 4, 1989, Minnie Lewis filed this action attempting to hold her ex-husband in contempt of court for non-payment of temporary alimony and medical bills pursuant to the agreed temporary decree of August 14, 1987. Minnie Lewis claimed that she was owed $2,309.03 for temporary alimony for the months of December, 1987, and January, February, April, May and June of 1988. Milton Lewis answered the allegations of his ex-wife asserting that the property settlement agreement incorporated into the final decree of divorce had settled all rights and obligations between the parties.

Upon a hearing before Chancellor Owens, the lower court issued its ruling finding that Milton Lewis was in contempt of court owing his ex-wife $1,700.00 for past due temporary alimony and $511.81 for medical bills. Aggrieved by the lower court's ruling, appellant perfected this appeal.

III.

The issue on appeal is essentially whether or not the final decree of divorce relieved Milton Lewis from paying an arrearage of temporary alimony which accrued before the entry of that final decree. A search of this state's jurisprudence does not reveal a case addressing the narrow issue before this Court. There is, however, authority supporting the chancellor's ruling in this matter.

The Supreme Court of West Virginia addressed the issue at bar in the 1983 case of Prather v. Prather, 305 S.E.2d 304 (W.Va.1983). In that case, the West Virginia court held that a final decree of divorce does not preclude a lower court from determining that there is an arrearage of temporary alimony that occurred before the entry of the final decree. Quoting from Clark, Law of Domestic Relations 427-28 (1968), that court stated:

In fact some authorities go so far as to hold that temporary alimony due and owing for the period up to the date of final decree cannot be collected after that date, because the temporary alimony order is 'merged' in the final decree of divorce and all enforcement proceedings fall with the order. This is an entirely senseless rule since it rewards the recalcitrant husband for non-compliance with the court's order by excusing him from payment of arrears. The majority of cases reach the opposite result. (footnotes omitted) E.g., Washington v. Washington, 163 Cal.App.2d 129, 329 P.2d. 115 (1958); Bork v. Richardson, 289 N.W.2d 622 (Iowa 1980); Button v. Button, 222 A.2d 245 (Me.1966); Mazer v. Mazer, 276 A.D. 733, 97 N.Y.S.2d 59 (1950); Ex parte Davis, 597 S.W.2d 501 (Tex.Civ.App.1980). See Annot., 154 A.L.R. 530 (1945).

Prather, 305 S.E.2d at 310. The West Virginia court went further by next discussing the policy behind the Prather ruling. The court stated:

From a policy standpoint, we believe it is inappropriate to sanction a rule that would enable a party to avoid payment of accrued temporary alimony on the basis that a final order has been entered. Our cases make it clear that the statutory right to obtain temporary alimony and support payments is intended to provide an economically deprived spouse with maintenance money during the pendency of the divorce. The beneficial purpose of the statute would be defeated by permitting the party responsible for paying temporary alimony to defeat the claim by showing that a final divorce decree had been entered.

Furthermore, in those jurisdictions adopting the merger rule, it would seem that such a rule would encourage unnecessary delay in the final resolution of divorce actions. Where there is an arrearage on temporary alimony or support, the party to whom the arrearage is owed would resist the entry of a final decree until the court holds a hearing and enters an order compelling payment of the arrearage. We can see no valid reason for adopting the merger rule.

Id.

The issue at bar was also ruled upon by the Supreme Court of Utah in the 1987 case of Druce v. Druce, 738 P.2d 633 (Utah 1987). In Druce, a husband was in arrears in his temporary support payments when the parties entered into a final decree of divorce. Arguing that all rights had been resolved by the divorce decree, the husband asserted that his wife's claim to unpaid temporary child support was res judicata. Rejecting this assertion, the Druce court stated as follows:

On appeal, defendant asserts that the temporary support order merged into the final decree and, since the final decree is silent regarding the delinquent temporary support payments, the doctrine of res judicata precludes plaintiff from seeking any unpaid amounts that accrued under the temporary order.

* * * * * *

We recognize that a few courts have adopted the rule advocated by defendant.... However, we disagree with those decisions. A rule that denies recovery of accrued unpaid obligations under a temporary order unless they are expressly preserved by the final order is 'entirely senseless ... [because] it rewards the recalcitrant husband for non-compliance with the court's order by excusing him from payment of arrears.' H. Clark, Law of Domestic Relations, Sec. 14.2 at 428 (1968).

* * * * * *

We prefer to adopt the opposing rule which appears to have gained widespread support. See, e.g. Bork v. Richardson, 289 N.W.2d 622, 625 (Iowa 1980); Button v. Button, 222 A.2d 245, 247 (Me.1966); In re Marriage of Warren, 31 Or.App. 213, 570 P.2d 104, 106-07 (1977); Ex parte Shaver, 597 S.W.2d 498, 500 (Tex.Civ.App.1980); Prather v. Prather, 305 S.E.2d at 310. We therefore hold that payments that become due and payable under a temporary order may be reduced to judgment after entry of the final decree, despite the failure of that decree to expressly preserve them.

Druce, 738 P.2d at 634.

The chancellor, in her ruling in this matter, relied upon this Court's decisions in Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608 (1959); and Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961). In Rainwater v. Rainwater, this Court held that after alimony has accrued, the party to whom it was awarded has a vested right thereto. We stated:

It is settled beyond question by the decisions of this Court that, after alimony has accrued, there is a vested right thereto, and that interest is allowed thereon. Guess v. Smith, 100 Miss. 457, 56 So. 166; Schaffer v. Schaffer, 209 Miss. 220, 46 So.2d 443; Gibson v. Clark, 216 Miss. 430, 62 So.2d 585. Besides a court cannot give relief from civil liability for any payments that have already accrued. Lewis v. Lewis, 213 Miss. 434, 57 So.2d 163.

Rainwater, 236 Miss. at 420-21, 110 So.2d at 610-11.

In Rubisoff v. Rubisoff, this Court held that installments of alimony under a divorce decree become fixed and vested when due and unpaid. The court stated:

Appellee paid alimony to appellant for a period of six months, but after he obtained custody of their child, he ceased paying appellant. It is a well-settled rule of law in this State that installments of alimony become fixed and vested when due and unpaid. Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608; Gibson v. Clark, 216 Miss. 430, 62 So.2d 585; Lewis v. Lewis, 213 Miss. 434, 57 So.2d 163; Guess v. Smith, 100 Miss. 457, 56 So. 166; Schaffer v. Schaffer, 209 Miss. 220, 46 So.2d 443; Grego v. Grego, 78 Miss. 443, 28 So. 817; 27-B. C.J.S. Divorce Sec. 276(g), p. 190. We therefore hold that payments due appellant became vested as they became due for the sum set out in the divorce decree directed to have been paid to appellant by the appellee.

Rubisoff, 242 Miss. at 235, 133 So.2d at 537.

In recent decisions, not cited by the lower court, this Court has affirmed the decisions in Rainwater v. Rainwater and Rubisoff v. Rubisoff. See, Brand v. Brand, 482 So.2d 236 (Miss.1986); and Bowe v. Bowe, 557 So.2d 793 (Miss.1990). In this regard, we feel that the trial judge was correct in her ruling.

As noted by the decisions...