Lockwood v. Lockwood

• Decision Date: 31 March 1947
• Docket Number: No. 9400.,9400.
• Citation: 160 F.2d 923,82 US App. DC 105
• Parties: LOCKWOOD v. LOCKWOOD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

82 US App. DC 105, 160 F.2d 923 (1947)

LOCKWOOD v. LOCKWOOD.

No. 9400.

United States Court of Appeals District of Columbia.

Argued January 13, 1947.

Decided March 31, 1947.

Mr. H. Winship Wheatley, of Washington, D. C., with whom Messrs. H. Winship Wheatley, Jr. and Louis Lebowitz, both of Washington, D. C., were on the brief, for appellant.

Mr. Milford F. Schwartz, of Washington, D. C., for appellee.

Before EDGERTON, CLARK, and PRETTYMAN, Associate Justices.

CLARK, Associate Justice.

This is an appeal from a judgment of the District Court granting appellee's motion for adjudication of arrears of alimony to the amount of $1,650.00.

Two questions are presented by the appeal. First, and of general interest and importance, whether the trial court, on a motion to adjudicate arrears of alimony, should reduce or remit the amount due on the grounds that the children who were minors when the award¹ was made had reached majority at the time the default in payment commenced; and second, whether appellant was denied due process of law because of the procedure followed by the trial court in refusing to grant him credit on the arrearages for $700.00 allegedly paid to his youngest child by authority of the appellee.

We answer both questions in the negative.

As to the first question, we have held that a single award for the support of a wife and minor children is alimony payable to the wife and is not contingent on the minority of the children.² True, the fact that the children do reach majority may be a ground for revision of the decree upon proper application, but a judgment on such an action looks only to the future and does not act in retrospect.³ It is well settled in this jurisdiction that the trial court is without power to effect a revision or remittance of past due alimony.⁴ The trial court acted correctly in enforcing the full payment of the accrued alimony.

As to the second question, appellant alleges that he was denied due process of law when the trial court disposed of this item of credit on the affidavits before it and refused to allow counsel for appellant to have his client come before the court. It is necessary to review the proceedings to dispose of this point. Appellee's motion to adjudicate arrears was filed on July 27, 1945. One week prior to this, on July 20, 1945, appellant had filed a motion to reduce alimony. On the same day he filed an amended motion with a supporting affidavit wherein he alleged that at the appellee's suggestion he had given the sum of $700.00 to his youngest child prior to her becoming of age and that his understanding was that this sum was to be applied to the alimony payments. This was denied by appellee in her affidavit in opposition to the amended motion to reduce alimony. Thus, while the $700.00 item was before the court in the affidavits connected with appellant's amended motion to reduce alimony, it was not brought out in appellee's motion for adjudication of arrears of alimony nor in the affidavit filed in connection with it.

The proceeding on the motion to adjudicate arrears took place on October 19, 1945. There is nothing in the record to show that the $700.00 item was brought up in this proceeding. However, on May 1, 1946, the trial court handed down a memorandum opinion granting appellee judgment for the arrears in which the court referred to the $700.00 item and disposed of it under the authority of the Biscayne Trust Co. case, supra, note 3. The final judgment for arrears was entered May 8, 1946, at which proceeding counsel for appellant brought up the $700.00 item and for the first time demanded that he be given an opportunity to bring his client before the court. The trial court ruled as a matter of law that appellant was not entitled to the credit.

We agree with the trial court that the $700.00 was not an item which could be utilized in reducing the overdue alimony. The amount of the alimony and the terms and method of paying it were fixed by the divorce decree and were in full effect at the time of the proceedings here complained of.⁵ And we do not think the trial court denied appellant due process of law in...