McGill v. McGill

• Decision Date: 07 July 1917
• Docket Number: 20,942
• Citation: 166 P. 501,101 Kan. 324
• Parties: DAKOTA MCGILL, Appellant, v. C. F. MCGILL, Appellee
• Court: Kansas Supreme Court

166 P. 501

101 Kan. 324

DAKOTA MCGILL, Appellant, v. C. F. MCGILL, Appellee

No. 20,942

Supreme Court of Kansas

July 7, 1917

Decided July, 1917.

Appeal from Edwards district court; ALBERT S. FOULKS, judge.

Order reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE--Alimony in Monthly Installments--Judgment Not Released. After a decree of divorce and an order for the payment of alimony in monthly installments the defendant sought to obtain from plaintiff's counsel a release of the order and paid him $ 25. It appears that counsel did not intend to release the judgment and had no authority so to do but intended only to receipt for an attorney's fee. The entry on the judgment docket consisted of the two words "Judgment released." Held, that no lawful release of the order for the payment of alimony was shown.

2. SAME -- Alimony in Monthly Installments -- Default in Payments -- Statute of Limitations. The order for the payment of alimony in monthly installments did not of itself constitute a lien upon any land of the defendant within the county. Whether or not any part of such order became dormant for failure for twenty years to take any steps toward its enforcement, it can not be held that all the monthly payments required thereby were barred by the statute of limitations.

3. SAME--Remarriage of Wife--Right to Alimony Continues. The general rule is that a divorced wife's remarriage to another does not of itself operate as a release of the former husband's obligation to pay alimony, although it may well furnish a ground for discharging him from further payments.

4. SAME--Laches in Enforcing Payments of Alimony. From the record it does not appear that the plaintiff by laches has lost her right to all the monthly payments ordered to be made to her by the defendant, mere delay not necessarily constituting laches.

5. SAME--Alimony--Default in Payment--Prima Facie Case for Contempt. It is held that the plaintiff made out a prima facie case and it was error to deny her motion to require the defendant to show cause why he should not be held in contempt for failure to obey the order to pay alimony.

L. A Madison, Carl Van Riper, both of Dodge City, and F. Dumont Smith, of Hutchinson, for the appellant.

A. L. Moffat, of Kinsley, for the appellee.

West J. West, Marshall, JJ., dissent.

OPINION

WEST, J.:

The plaintiff on January 14, 1916, filed a motion praying that an order issue to the defendant to appear and show cause why he should not be adjudged guilty of contempt for failing to comply with an order made by the court on October 15, 1895, requiring him to pay the plaintiff $ 10 a month alimony on the first day of each month, a divorce having been granted to the plaintiff at that time. The defendant moved to set aside the judgment for alimony, setting up that the judgment had been released, that since the release no payment had been made, and that the plaintiff was barred from any relief by the statute of limitations.

It appears that after the divorce the plaintiff, with her two little girls, lived with her parents until some eight years before filing her motion, most of the time being spent in South Carolina; that she raised and supported the children, who are now married, without any help from the defendant; that in 1908 she remarried, lived about two years with her second husband and was divorced from him on the grounds of drunkenness and cruelty, being awarded no alimony. A year or two after the divorce between the parties hereto the defendant desired to have the alimony order released, and claims to have paid counsel for plaintiff, who is also her counsel now, for a release. The appearance docket shows a charge of five cents for filing release, and twenty cents for entering it on the judgment docket. The files are lost. The entry on the judgment docket consists of two words, "Judgment released." Plaintiff's counsel testified that the defendant wanted to know if he would press him for alimony if he came back, to which counsel responded that he knew nothing about the plaintiff as she had left the country and that upon receipt of $ 25 attorney's fee, he having nothing to do with the alimony, he would not press that, and that he executed a release for his attorney's fee, but had no authority to compromise or release plaintiff's alimony. The defendant was remarried in 1897. No effort heretofore seems to have been made to require any attention to be paid to the alimony order. The court discharged the defendant and the plaintiff appeals.

The defendant seeks to justify the action of the court on the grounds that the record showed a release, that the proceeding was barred by the statute of limitations, that the plaintiff's remarriage had the effect of depriving her of any further right to look to the defendant for alimony, and that she was guilty of laches.

From the testimony it does not appear that the judgment or order requiring the payment of alimony was ever in fact or in law released, although it may well be that the defendant thought he had secured its release. From the showing made the plaintiff did not consent to any release nor authorize her counsel to execute any, and what was done regarding the payment of an attorney's fee together with the entry of the two words "judgment released" on the docket are not deemed sufficient to operate as a satisfaction.

The statute of limitations is invoked on the theory that the order for the payment of alimony amounts to a judgment collectible on execution and...