Nugent v. Nugent

• Citation: 152 N.W.2d 323
• Decision Date: 07 July 1967
• Docket Number: No. 8406,8406
• Parties: Doris V. NUGENT, Plaintiff and Respondent-Appellant, v. Milton E. NUGENT, Jr., Defendant and Appellant-Respondent.
• Court: United States State Supreme Court of North Dakota

Page 323

152 N.W.2d 323

Doris V. NUGENT, Plaintiff and Respondent-Appellant, v. Milton E. NUGENT, Jr., Defendant and Appellant-Respondent.

No. 8406.

Supreme Court of North Dakota.

July 7, 1967.

Rehearing Denied Aug. 22, 1967.

Syllabus by the Court

1. The remarriage of a divorced wife does not of itself terminate her right to alimony, but it does make out a prima facie case which requires the court to end it in the absence of proof of some extraordinary circumstance justifying its continuance.

2. The award by the court of alimony is a continuance of the husband's obligation to support the wife, and there is no reason why that obligation should remain when another husband has assumed it, unless some extraordinary circumstance justifying its continuance is shown.

3. The circumstances surrounding the parties in the instant case are not so extraordinary as to justify the continuance of alimony payments by the former husband of the divorced wife after her remarriage.

4. The determination of whether alimony payments should be terminated when a divorced wife has remarried, and if so, when, is within the sound discretion of the trial court; and unless there is a showing of an abuse of this discretion, the trial court's decision will not be reversed on appeal. Because the trial court in the instant case did not exercise its judicial discretion but was of an erroneous legal opinion concerning its power to abate alimony payments which were in arrears, this case is remanded with instructions to the trial court to modify its judgment in accordance with this opinion, abating the alimony payments which were in arrears as of the date of the remarriage of the divorced wife.

5. In this case the original divorce decree and the record have been examined, and it is held that the provisions of the decree providing for alimony or support payments to the wife are not so inseparable from the provisions relating to the division of property that the trial court, under § 14--05--24, N.D.C.C., could not thereafter upon proper application modify or terminate the alimony provisions.

Jack R. Christensen, Bismark, for defendant and appellant-respondent.

Zuger, Zuger & Bucklin, Bismarck, for plaintiff and respondent-appellant.

ERICKSTAD, Judge.

This is an appeal by Milton E. Nugent, Jr., from an amended judgment and decree dated September 29, 1966, the pertinent part of which reduced the alimony or support payment required of him to be paid to his former wife, Doris V. Nugent, from 33 1/3 per cent of his gross monthly income from professional earnings as a medical doctor, as was required in the original divorce decree, to 16 2/3 per cent of his gross monthly income from his professional earnings as a medical doctor, as of July 1, 1966, providing he purged himself of contempt by complying by October 1, 1966, with the court's order of August 2, 1966. (That order required Milton to purge himself of contempt by making payments by September 1, 1966. On August 31, 1966, another order required him to make necessary payments by October 1, 1966, and the judgment set the date as October 1, 1966.)

Doris married Robert W. Hirsch on October 17, 1965. She has cross-appealed from the amended judgment and decree.

Doris initiated her action for divorce by summons and complaint dated July 1, 1964. At that time she was represented by a Bismarck attorney, but Milton was not represented by any attorney. On this appeal Doris is not represented by the attorney who represented her in securing the divorce but by a different one.

Paragraph 5 of the complaint real as follows:

That the parties have entered into a property settlement agreement, which is attached hereto, marked plaintiff's exhibit 'A' and made a part hereof by reference, which plaintiff asks the Court to incorporate in its Order, if a divorce is granted on the merits(.)

The original judgment in the divorce proceeding is dated July 6, 1964, and includes the provisions contained in the so-called 'property settlement agreement,' Milton (without the advice of counsel) having waived the time for answering and having consented to the entry of a judgment without further notice to him.

The pertinent part of the August 2 order reads as follows:

The Defendant is hereby ordered to pay to the Plaintiff the following amounts to correct all defaults by him up to June 1, 1966:

(A) $10.84; and

(B) $1,388.88, with interest at 4% From January 1, 1966, until paid; and

(C) $694.44, with interest at 4% From February 1, 1966, until paid; and

(D) $694.44, with interest at 4% From March 1, 1966, until paid; and

(E) $694.44, with interest at 4% From April 1, 1966, until paid; and

(F) $694.44, with interest at 4% From May 1, 1966, until paid; and

(G) $694.44, with interest at 4% From June 1, 1966, until paid.

The Defendant is ordered to pay the above items (A) through (G) before September 1, 1966.

It is adjudged that a reasonable attorney's fee to the Plaintiff's attorney for his work involved in the Order to Show Cause is $250.00. The Defendant is ordered to promptly pay to the Plaintiff the sum of $250.00 for attorney's fees.

The Defendant's motion, for modification of judgment is conditionally and partially granted, as follows:

If before September 1, 1966, the Defendant has made the following payments:

1. Payment of all amounts due to the Plaintiff as of June 1, 1966, as set out above in items (A) through (G); and

2. Payment of all child support payments due between June 1, 1966, and September 1, 1966; and

3. At least the sum of $694.44 for a one-third share of his gross monthly income from medical practice for the month of June, 1966; and

4. One-sixth of his gross monthly income from medical practice during the months of July and August, 1966;

then, the Judgment of Divorce entered herein on July 6, 1964, may be modified, reducing the monthly payment to the Plaintiff specified in paragraph 5 of that Judgment.

The modification shall be for payments for income earned after July 1, 1966, and shall be a reduction from 33 1/3% Of Defendant's gross monthly income to 16 2/3% Of Defendant's gross monthly income. (No change shall be made in the child support payments, or other provisions of the judgment or for payments for income prior to July 1, 1966.) * * *

A logical explanation of that part of the order appears to be: that item (A) is the interest on the child support payments of $400 per month due for December 1965 through March 1966, which were not made until March 19, 1966; that the $1,388.88 of item (B) represents the alimony or support payment due (based on one-third of Milton's annual gross income from medical practice of $25,000) for November and December 1965; and that the $694.44 of items (C) through (G) represents one-third of Milton's gross income from medical practice for January through May 1966.

It is Milton's contention that on his motion to amend the original divorce judgment, the trial court should have amended the judgment so that no alimony or support payments to Doris would be required after October 17, 1965, the date of her marriage to Mr. Hirsch. If Milton is correct, he owes nothing in the way of alimony or support payments to Doris, as his payments based upon one-third of his gross income from his medical practice were made through October 1965.

On the other hand, Doris contends that no change may be made in a divorce judgment while a party seeking the change is in contempt of court, and that Milton was in contempt of court when he made a motion on June 20, 1966, to amend the original judgment to eliminate the requirement that he pay one-third of his gross income from professional services as a medical doctor to Doris as alimony or support money.

It should be noted that Milton made a similar motion on November 8, 1965, which the trial court denied by order dated January 5, 1966. Milton did not appeal from that order. By application dated February 4, 1966, Doris sought an order to show cause why Milton should not be required to make child support payments then due in the amount of $1,200 and alimony or support payments to Doris for November and December 1965 and for January 1966.

In its memorandum opinion of July 22, 1966, the trial court considered Doris's motion for an order to show cause and Milton's second motion for an amended judgment (which were heard June 27, 1966) and directed Doris's counsel to prepare an appropriate order to carry out the conclusions contained in that memorandum opinion. The order called for in the memorandum opinion is the August 2, 1966, order previously quoted and discussed herein.

On August 31, 1966, the trial court ordered that the judgment be amended in accordance with the memorandum opinion of July 22.

Pursuant to motion dated September 22, the trial court entered its order on October 7, staying execution of the amended judgment except as it related to the payment of child support, the payments for child support being separate from the alimony or support payments to Doris. That order required, as a condition to staying execution of the judgment, that a supersedeas bond for $10,000 be filed with the clerk of district court or that a cash deposit or a certificate of deposit payable to the clerk in that amount be filed with him. In compliance therewith such a certificate of deposit was filed with the clerk. Other provisions were made for increasing the size of the certificate of deposit as time went on.

No contention has been made that the child support payments, commencing with the payment due in April 1966, have not been promptly made.

If Milton is correct in his contention, it would appear that as of November 8, 1965, the date of his first motion to amend the judgment, he was not in default, and that as of June 20, 1966, the date of his second motion to amend the judgment, he was in default only $10.84, the interest on the child support payments for the period December 1965 through March 1966, the principal amount of those payments having been...