Oedekoven v. Oedekoven

• Decision Date: 12 August 1975
• Docket Number: No. 4478,4478
• Citation: 538 P.2d 1292
• Parties: Leon L. OEDEKOVEN, Appellant (Defendant below), v. Auguste Gloria OEDEKOVEN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1292

538 P.2d 1292

Leon L. OEDEKOVEN, Appellant (Defendant below), v. Auguste Gloria OEDEKOVEN, Appellee (Plaintiff below).

No. 4478.

Supreme Court of Wyoming.

Aug. 12, 1975.

Bruce P. Badley and Micheal K. Shoumaker, Sheridan, for appellant.

Thomas E. Lubnau, gillette, for appellee.

Before RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

One serious question, as we see it, arises in this appeal: Is contempt the proper path to travel when a property settlement agreement is only ratified and confirmed by the divorce decree, without incorporation a direction that the parties comply with its terms? There are other significant queries raised by appellant intertwined with that problem which we shall dispose of at the time they are reached.

A property settlement agreement was placed in the court file on February 3, 1969, and noted on the docket. The appellant-defendant and the appellee-plaintiff, at an uncontested hearing, were divorced by a decree entered on February 6, 1969. The decree provided, 'IT IS FURTHER CONSIDERED, ADJUDGED AND DECREED that the Property Settlement Agreement filed herein be, and the same is hereby ratified and confirmed in all respects.' There was no other reference to the agreement in the decree.

The plaintiff, over four years later, filed a motion for an order to show cause why defendant should not be punished for contempt of court for failure to comply with the divorce decree to pay $1,950.00 claimed due; a citation issued. The matter was heard and the court found and ordered, 'that the defendant be and he is hereby in contempt of court for failure to pay the sum of $1,950.00 to plaintiff and said contempt may be purged by defendant paying said sum within thirty (30) days from the date hereof,' all for failure to comply with the divorce decree dated February 3, 1969 and entered February 6. 1969.

The rule is plainly stated in 24 Am.Jur.2d (Divorce and Separation) § 921, p. 1049:

'Assuming that performance of an act called for by a property settlement may be enforced by a contempt proceeding where the court distinctly orders performance, performance will not be so enforced where the decree is not to be construed as including such an order. Thus, if the decree approves a property settlement but does not order the parties to perform its obligations, the violation of the agreement is not a violation of the decree and is not a contempt of court.'

To the same effect is 27B. C.J.S. (Divorce) § 300(3), p. 382, which it is said:

'The provisions of a property settlement agreement, which is complete in itself and is merely referred to in the decree or approved by the court but not actually made a part of the decree, cannot be enforced by contempt proceedings. * * *'

The rule as stated is fortified by the following cases: Shepherd v. Shepherd, 1967, 223 Ga. 609, 157 S.E.2d 268; Mitchell v. Mitchell, 1967, 270 N.C. 253, 154 S.E.2d 71; Horcasitas v. House, 1965, 75 N.M. 317, 404 P.2d 140; Wright v. Stidham, 1964, 95 Ariz. 316, 390 P.2d 107; and Stanley v. Stanley, 1946, 226 N.C. 129, 37 S.E.2d 118.

The reasoning in the cited cases is that a mere approval of a property settlement agreement is not a command to pay what is due by its terms and so, therefore, there is no order of the court or decree of the court that has been violated. Furthermore, there are hovering in the background constitutional implications that a person may not be imprisoned for debt but we avoid nailing our decision to that reason. The result we then have is when a party to a divorce action, where the court has only approved and ratified the agreement, asserts nonpayment under its conditions, he or she is confined to a claim on contract, not enforceable by contempt proceedings. We so hold and consider it fundamental reversible error to hold defendant in contempt with all its overtones of punishment under such circumstances, even in absence of objection. The obligation sought to be enforced is negotiated and contractual and while arising out of marriage, the remedy must conform to the right asserted-one consistent with contract and not a decree enforceable by attachment of the person.

Our holding does not invalidate the entire proceeding because we can see no objection to such an action being taken in the same file wherein appears the processing of the divorce. In that it is related and arising out of the parent action, docketing in the same case is convenient. A separate action is available, however, and may be more practical as, for example, to pursue contract enforcement in another county where the situation would be more favorable for service of process and convenience of the litigants. The pleadings and associated papers are clear that plaintiff is claiming $1,950.00 arising out of the divorce proceeding so the defendant is not misled that plaintiff is after something different than the money she claims under a related contract. The record reveals both parties were in court and did litigate a dispute over their divorce agreement. It would be a waste of judicial time, the effort of counsel and a generally inefficient judicial administration to require plaintiff to initiate new proceedings or order a new trial because of an invalid finding and order that the defendant was in contempt and threatened with punishment if he failed to make payment of the disputed amount within 30 days.

By Rule 72(c), W.R.C.P., 'A judgment rendered or final order made by the district court may be reversed in whole or in part, vacated or modified by the supreme court for errors appearing on the record.' This should be read with subparagraph (i) of the same rule providing that when a judgment or final order is reversed in whole or part, the supreme court may remand the case to the district court for such judgment as that appellate court directs.

Upon a reversal, if it appears to the supreme court that a new trial court serve no useful purpose, the district court may be directed to enter a judgment in favor of the person entitled, when the proper amount can be readily ascertained from the record. Willis v. Asbury Transportation Co., Wyo.1963, 386 P.2d 934, 938; Bryant v. Cadle, 1909, 18 Wyo. 64, 97, 104 P. 23, mod. on reh. 18 Wyo. 64, 106 P. 687.

The parties are before the bench as is the evidence to grant or deny a simple judgment for money and thus can be saved a return trip to court. We therefore shall treat the case as an action on contract for money and examine the proceedings and evidence is that light. Further yet, we see no need to remand this case for a new trial in that there is no indication that the evidence would be any different if it were retried. Error here goes only to remedy.

Apparently, all the parties were under the impression at the time of the hearing that it was in fact a contempt proceeding. Defendant made no objection to the nature of the proceeding. Accordingly, when asked whether defense counsel wished to make an opening statement, counsel for the defendant indicated that he would and the court said he thought the defendant had the 'burden of going ahead' and thereupon counsel for the defendant, without objection, proceeded to make an opening statement. Counsel for the defendant, following opening statements, asked the court, 'Do you want us to present ours first?' The court stated, 'On an Order to Show Cause you have the burden of going ahead.' The defendant then went ahead, also without objection.

The defendant takes the position that this imposed some sort of an unfair burden upon him of proving that he owed the plaintiff nothing which he must carry by a preponderance of the evidence. The court did not say what defendant attributes to his statements. There is an obvious difference between the 'burden of going ahead' and the 'burden of proof.' We do not intend to either explore or decide in any great depth the matter of the burden in its intricate technical aspects but we shall examine the evidence to determine whether sufficient to sustain the trial court's finding that the defendant owes the plaintiff $1,950.00 on the agreement.

Defendant made no objection to the order of evidence in the trial court; we will not consider matters raised for the first time on appeal unless they go to the jurisdiction or are otherwise of such fundamental nature that we must take cognizance of them. Guggenmos v. Tom Searl-Frank McCue, Inc., Wyo.1971, 481 P.2d 48; Laramie Printing Trustees v. Krueger, Wyo.1968, 437 P.2d 856, 859; Moore v. Kondziela, Wyo.1965, 405 P.2d 788; Gaido v. Tysdal, 1951, 68 Wyo. 490, 235 P.2d 741.

Before departing from the subject, then, we should clear the air of any thought that there is any fundamental reversible error with respect to order of evidence followed and over which the defendant claims error. As said in Reinke v. Personnel Board, 1971, 53 Wis.2d 123, 191 N.W.2d 833, 837:

'The phrase 'burden of proof' is used in the sense of burden of persuasion rather than who has the burden of going forward with the evidence. The burden of going forward with the evidence is a procedural device for the orderly presentation of a case, and shifts to the other party when a prima facie case has been established. The trial court was correct in stating that the allocation of this burden is of no significance as long as a fair hearing is conducted. * * *'

See also Ambrose v. Wheatley, D.C.Del.1971, 321 F.Supp. 1220, 1222 (note 6); Star Manufacturing Co. v. Atlantic Coast Line...