Munsey v. Munsey
| Decision Date | 15 October 1963 |
| Docket Number | No. 39405,39405 |
| Citation | 1963 OK 225,385 P.2d 902 |
| Parties | Beatrice MUNSEY, Plaintiff in Error, v. Olin A. MUNSEY, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. A property settlement agreement, although approved in a divorce decree, providing for payment of alimony without definitely fixing the total amount to be paid or the term during which the payments are to be made, is void.
2. When neither the property settlement agreement nor decree of divorce settles the total amount of alimony to be paid, the question of alimony nevertheless may still be pending before the court, and, in such case, the court may correct the error by modifying said provision so as to make the period of payments, or the total amount thereof, definite and certain.
3. Under the facts of this case, Held: that the award to wife for attorney's fee should be modified.
Appeal from the District Court of Kiowa County; Weldon Ferris, Judge.
From an order of the trial court allowing her additional alimony of only $800.00 and an attorney fee of only $100.00 following hearing on her motion to modify the decree of divorce, wherein defendant sought alimony for a definite period of time and attorney's fees, defendant appeals. Modified, and affirmed as modified.
Jack B. Sellers, Sapulpa, for plaintiff in error.
Fred Cunningham, Hobart, for defendant in error.
Involved herein is the matter of the length of time plaintiff should pay his former wife the amount of $75.00 per month pursuant to a purported written property settlement agreement made with her which was approved by the trial court but which did not fix either the total number of payments to be made or the total amount to be paid.
The plaintiff was granted a decree of divorce from the defendant on the 17th day of September, 1958, upon the grounds of incompatibility. The parties had been married on September 7, 1951. No children were born to them. At the time of their marriage, the plaintiff was forty-eight years of age and the defendant was fifty-six years of age.
The terms of such agreement entered into by the parties prior to the filing of plaintiff's petition in the divorce suit were reflected in the decree of divorce which 'confirmed and approved' the 'property settlement agreed to as between the parties.'
Such contract, as reflected in such decree, had a provision as follows, to-wit:
'* * * (T)hat plaintiff should pay to defendant the sum of $75.00 per month in payments of $37.50 upon the 1st and 15th day of each and every month as permanent alimony, beginning October 1, 1958.'
The plaintiff complied with the agreement to pay the $75.00 per month for sixteen months. He then quit and some three months afterward the defendant filed an 'Application for Citation-Indirect Contempt.' After order had been made and citation issued, plaintiff answered such application, claiming that the decree was 'void as to the alimony' for the reason 'the court did not fix a definite amount ultimately to be paid.'
Soon afterward, the defendant filed a motion to modify the decree of divorce as to alimony payments. Therein she stated:
'That the Court's order, through no fault of defendant, was void as to that portion of the order providing alimony in that said order did not set the total amount to be paid or a determined period of time during which said money would be paid. * * *'
She alleged that she was then 'a healthy able-bodied female, aged sixty-five (65) years with a life expectancy of fifteen (15) years. * * *' She prayed a modification of the decree of divorce to make 'provisions for alimony payments for a period of fifteen (15) years, attorney's fees and costs of this action. * * *'
Plaintiff in answer to such motion to modify, alleged, in part, as follows, to-wit:
In the hearing in the trial court on motion to modify, defendant testified that before her marriage to him, plaintiff was unable to save his money but that afterward she would take his pay checks to the bank, deposit same and pay the bills; that they were able to accumulate the furniture, funds and bonds to which reference is herein made.
In such hearing defendant sought to show that she used the money plaintiff gave her when the parties were separated to make the down payment on a house in Stillwater; that in making such purchase she relied upon the anticipated receipt of the $75.00 monthly payments; that she had two apartments for rent but which were vacant; that she was paying $65.00 per month to apply on the balance of principal and interest still owing on such property; and that she was in financial stress. She showed a life expectancy of fifteen years and stated that nobody 55 years of age would quit a job such as plaintiff had. She indicated she had figured to receive the $75.00 per month as long as plaintiff lived and was still so employed.
Plaintiff in such hearing, testified that he was, and had been for about thirty-five years, employed by an oil company as a pumper; that his salary was about $400.00 per month; that his take-home pay was about $325.00 per month; that the difference went for taxes, hospitalization insurance, retirement plan and bonds. On cross-examination, by his own attorney after having testified at call of defendant, he testified that he agreed to pay the defendant $50.00 per month alimony and she agreed to take it. He further testified:
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