Miller v. Miller

• Decision Date: 19 April 1943
• Docket Number: No. 2568.,2568.
• Citation: 134 F.2d 583
• Parties: MILLER v. MILLER.
• Court: U.S. Court of Appeals — Tenth Circuit

134 F.2d 583 (1943)

MILLER v. MILLER.

No. 2568.

Circuit Court of Appeals, Tenth Circuit.

March 5, 1943.

Rehearing Denied April 19, 1943.

John Ladner, of Tulsa, Okl. (Carl H. Livingston, of Tulsa, Okl., on the brief), for appellant.

A. F. Moss, of Tulsa, Okl. (Lloyd G. Owen, of Tulsa, Okl., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The appellant, Elsie A. Miller, a resident of New Jersey, sued her former husband, a resident of Oklahoma, to recover arrearages and the liquidated value of an alleged separate maintenance agreement between the parties, alleging the requisite amount in controversy. The trial court sustained a motion to dismiss the petition, and entered judgment for the appellee on the grounds, (1) that the alleged contract was unenforceable because of its indefiniteness, vagueness, and uncertainty, and (2) the asserted right or claim had been previously adjudicated by a judgment between the same parties in the district court of Tulsa County, Oklahoma (affirmed Miller v. Miller, 186 Okl. 566, 99 P.2d 515, certiorari denied 311 U.S. 645, 61 S.Ct. 9, 85 L.Ed. 411), as a consequence of which she is barred and estopped by the former judgment.

The judgment of the trial court is based upon the allegations in the complaint, the attached exhibits, and pertinent proceedings in the district court of Tulsa County, of which, it was agreed, the court could take judicial knowledge. The same questions are presented here on the same record which discloses the following facts: The appellant and appellee were married in New York in 1911, and the appellee deserted the appellant in 1920. Soon after the separation, and on June 30, 1920, the parties as husband and wife entered into a written agreement, which recited the marriage, the birth of one child, Elsie Julia Miller, then four years of age, and the subsequent separation. The agreement further recited "the desire of the parties hereto to agree upon the provision to be made by the party of the first part (appellee) for the maintenance and support of the party of the second part (appellant) and child". Accordingly, it was agreed that the appellee would convey the home, together with all furnishings therein, free of mortgage indebtedness, to the appellant, and he further agreed to pay the appellant $50 weekly from July 1, 1920, to July 1, 1923, and she agreed to accept the same in full for all "alimony" for support and maintenance of herself and child until July 1, 1923. The contract in this respect was fully performed. It was further agreed, "That on or before June 1, 1923, the parties hereto would agree, if possible, as to the provision to be made by the party of the first part for the maintenance and support of the party of the second part and her daughter, Elsie Julia Miller, subsequent to July 1, 1923".

On September 27, 1922, the appellant sued for divorce in the chancery court of New Jersey, obtained constructive service by publication upon the appellee, who at that time resided in Oklahoma and on May 2, 1923, was granted a decree nisi. On May 24, 1923, and before the divorce decree became final in the following November, the appellee addressed a letter to appellant in which he expressed an intention to remarry before the divorce became final, and asked appellant to assure him that he need not expect any "detrimental action" on her part should he decide to "take the step" prior to the six months period required under the laws of New Jersey. He further stated, "Commencing with July, I expect to increase my allowance to you and Elsie Julia from $216.00 a month, the present rate, to $250.00 a month, and I hope that no further legal matters will be raised which might prevent my being able to continue to send you this amount. This of course rests in your hands". On May 29, 1923, the appellant, through her solicitor, addressed a letter to the appellee in which she stated that she had no intention of doing anything to avoid the final decree of divorce, stating, "we might add in regard to the monthly payments, that while we had no definite arrangements when these payments were to begin, we thought they would start when the understanding was reached with your solicitor". Nothing further was said or done at that time concerning an agreement between the parties. The divorce became final on November 3, 1923, and the appellee continued monthly payments of $250 until June 1, 1932.

On August 28, 1925, apparently in answer to a request from the appellant for an additional allowance, he informed her by letter that it was impossible for him under the present conditions to increase the allowance, and that it would be necessary for her to budget the allowance so that she and Elsie Julia could live on the $3,000 per year ($250 monthly) which he had been sending them for their "joint maintenance". On May 4, 1932, the appellee advised the appellant that by reason of capital losses and increased family responsibilities, it would be necessary to reduce his monthly remittance by $25. On the following June 16th, he informed the appellant by letter that by reason of a salary reduction, a further revision of the budget was necessary, and commencing July first he was compelled to reduce his remittance to $200 monthly. Again on February 15, 1935, he informed her by letter that commencing April first "and until further notice", he would send $100 monthly for "Elsie Julia's maintenance". Accordingly the appellee made the following payments after June 1, 1932: For the month of June, 1932, $225; from July 1, 1932, to March 1, 1935, $200 monthly; for the month of March, 1935, $150; from April 1, 1935, to May 1, 1937, $100 monthly; for the month of May 1937, $67.74, after which no further payments were made.

On May 29, 1937, the appellant instituted an action in the district court of Tulsa County, Oklahoma, in which she alleged the marriage, the birth of the daughter, the separation, the separation agreement dated June 30, 1920, and the subsequent divorce. She attached the separation agreement and the letter from the appellee to the appellant under date of May 24, 1923, and the letter of her solicitor in response thereto dated May 29, 1923. She alleged that these letters supplemented and modified the original separation agreement, and as supplemented and modified constituted a binding agreement for alimony during the joint lives of the parties, when and only when approved by a court of competent jurisdiction. She pleaded the factum of the law of New Jersey as controlling the agreement, and alleged in detail the wealth, earnings, and earning capacity of the appellee; that she and her daughter were both in failing health, requiring constant medical service; that she had no means of support and was not physically capable of supporting herself or her daughter, and the daughter was incapable of earning a livelihood and was consequently dependent upon her. She alleged default in payment of the "alimony" under the alleged contract, for an amount calculated to be the difference between the amount received and $250 per month, until the date of the filing of the petition. She prayed for approval of the agreement and alimony in accordance therewith, together with such additional alimony and division of property deemed just and equitable. She further prayed for reasonable attorney's fee, and costs of the action. Appellee (defendant there) answered, denying that the New Jersey laws controlled the rights of the parties, or that the letters attached to the appellant's petition constituted an enforceable contract of any character, and alleged further that considering the value of all his properties and his earnings at the time the divorce was granted in New Jersey, he had paid the appellant all alimony to which she was equitably entitled under the laws of Oklahoma or of New Jersey, and prayed that she be denied further relief. The state trial court found and concluded that, under the applicable laws of Oklahoma, the amounts heretofore paid to the appellant for the support and maintenance of herself and child constituted an equitable discharge of his duty to support and maintain his wife and child after divorce. This judgment was affirmed by the Supreme Court of Oklahoma, see Miller v. Miller, supra.

The alleged separation agreement between the parties was pleaded in the Oklahoma court as a valid agreement, subject to the approval of a court of competent jurisdiction. It had not and could not have been approved or disapproved by the New Jersey court granting the divorce, based upon constructive service. West v. West, 114 Okl. 279, 246 P. 599; Spradling v. Spradling, 74 Okl. 276, 181 P. 148. Consequently the appellant, deeming herself constrained by the laws of New Jersey and Oklahoma, presented the alleged agreement to the Oklahoma court having jurisdictional authority to make provision for support and maintenance of the innocent wife and child, and to that extent abrogate any pre-existing agreements in conflict with its equitable judgment. Wheeler v. Wheeler, 167 Okl. 598, 32 P.2d 305; McRoberts v. McRoberts, 177 Okl. 156, 57 P.2d 1175; Sobel v. Sobel, 99 N.J.Eq. 376, 132 A. 603; Greenberg v. Greenberg, 99 N.J.Eq. 461, 133 A. 768; Apfelbaum v. Apfelbaum, 111 N.J.Eq. 529, 162 A. 543, 84 A.L.R. 298; Second National Bank of Patterson v. Curie, 116 N.J.Eq. 101, 172 A. 560; Aioso v. Aioso, 119 N.J.Eq. 385, 183 A. 219; Phillips v. Phillips, 119 N.J.Eq. 462, 183 A. 220.

But she did not seek to recover on the contract, or to have the same declared a valid, binding, and subsisting agreement, except insofar as it constituted a "guide" and for the persuasive effect to which it was legally entitled in the determination of the equitable issue of alimony incidental to the divorce, which the Oklahoma court undoubtedly had the equitable power and the duty to adjudge. See Miller v. Miller, supra, West v. West, supra; Wheeler v. Wheeler, supra. The...