Phy v. Phy

• Decision Date: 16 June 1925
• Citation: 236 P. 751,116 Or. 31
• Parties: PHY v. PHY.
• Court: Oregon Supreme Court

236 P. 751

116 Or. 31

PHY v. PHY.

Supreme Court of Oregon

June 16, 1925

In banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Suit for divorce by W. T. Phy against Winnifred W. Phy, in which decree was entered for defendant on her cross-complaint. From order denying his motion to modify the decree, in so far as it related to alimony, plaintiff appeals. Reversed, and decree modified.

This is an appeal from an order denying a motion to modify the divorce decree granted to Winnifred W. Phy on October 16 1922, by the circuit court of Union county, in a suit originally brought against her by her husband, W. T. Phy.

On August 31, 1922, and during the course of their litigation the plaintiff and defendant entered into a property settlement, wherein it was provided:

"That this agreement is a property settlement and alimony, shall be taken as a full and complete settlement of all property interests and alimony between the parties, and neither party hereto shall be compelled to pay, nor either party hereto can recover, any more property or alimony than is as herein set out. And such property settlement and agreement of alimony shall be in full for all property rights, costs attorney's fees, and alimony, in any suit whatsoever."

It appears from the contract that by way of settlement the plaintiff agreed to transfer to the defendant 170 shares of stock in Hot Lake Sanitorium, and to deliver to her a Chickering baby grand piano. He likewise promised to pay alimony as follows:

"$500 on or before the 5th day of September, 1922, and $500 on or before the 5th day of October, 1922, and $100 on or before the 5th day of each and every month thereafter for a period not to exceed 65 months; which said payment shall not exceed an aggregate sum of $7,500, which payment of alimony shall be in lieu of all other alimony heretofore ordered by said court; provided, however, that all payments made prior to the 1st day of September, 1922, shall not be considered as a part of said alimony as set forth in this agreement."

On the trial of the cause the court, basing its decision upon its findings of fact and conclusions of law therein entered granted a decree of divorce to Winnifred W. Phy upon her cross-complaint, and made a part of the decree the stipulation referred to above.

Thereafter on the 12th day of April, 1924, W. T. Phy, the divorced husband, filed a motion to modify the decree in so far as it related to alimony, and prayed an order of the court that such alimony be discontinued for the reason that Winnifred W. Phy had remarried. The court denied the motion, and Phy appeals to this court.

Cochran & Eberhard, of La Grande, for appellant.

W. F. Magill and Milton R. Klepper, both of Portland, for respondent.

BROWN, J. (after stating the facts as above).

This case involves the right of a divorced wife who has remarried to continue to collect alimony from her former husband as provided in the decree of divorce.

"Alimony is an allowance for support, which is made upon considerations of equity and public policy. It is not property of the wife recoverable as debt, damages, or penalty. It is based upon the obligation, growing out of the marriage relation, that the husband must support his wife--an obligation which continues even after a legal separation without her fault." 2 Schouler, Marriage, Divorce, Separation, and Domestic Relations (6th Ed.) § 1754.

This court has held that maintenance and permanent alimony are synonymous terms and constitute an allowance in money, to be recovered from the one in fault for the support of the innocent party. Huffman v. Huffman, 47 Or. 610, 86 P. 593, 114 Am. St. Rep. 943.

"The remarriage of a divorced wife cuts off her right to alimony from the date of her remarriage, and alimony may be reduced to a nominal sum where the wife has remarried with a man able to support her, or retained only at a sum sufficient for support of the minor children." 2 Schouler, Marriage, Divorce, Separation, and Domestic Relations (6th Ed.) § 1834.

In 19 C.J. 275, 276, the editors announce the doctrine that, while a divorced wife's remarriage to another does not ipso facto release the former husband's obligation to pay alimony, it affords a cogent reason for the court to modify or vacate a decree awarding alimony, "especially where the wife marries a man who is able to afford her a reasonable support; and the rule applies to a decree based upon and incorporating an agreement between the parties, as well as to one founded on testimony."

The effect of remarriage of the wife upon an allowance of alimony is treated as follows in 1 R. C. L. p. 950:

"Aside from its positive unseemliness, it is illogical and unreasonable that she (the divorced wife) should have the equivalent of an obligation for support by way of alimony from a former husband, and an obligation from a present husband for an adequate support at the same time. It is her privilege to abandon the provision made by decree of the court for her support under sanctions of the law, for another provision for maintenance which she would obtain by a second marriage, and when she has done so the law will require her to abide by her election as there is no reason why she should not do so."

See 30 A. L. R. p. 79, note; 11 Ann. Cas. 523, note; Carlton v. Carlton, 100 So. 745.

It is a general rule that the remarriage of a divorced wife does not of itself terminate the former husband's obligation to pay the alimony decreed. Brandt v. Brandt, 40 Or 477, 67 P. 508; McGill v. McGill, 101 Kan. 324, 166 P. 501; Hartigan v. Hartigan, 142 Minn. 274, 171 N.W. 925; Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066; 1 R. C. L. p. 950. But, when an application is regularly made to modify the decree awarding alimony, and the marriage of the divorced wife is shown, the burden of showing the circumstances to overcome the fact of marriage is placed upon the divorced wife. Brandt v. Brandt, supra; Cohen v. Cohen, 150 Cal. 99, 88 P. 267, 11 Ann. Cas....