Pryor v. Pryor

• Decision Date: 30 November 1908
• Citation: 114 S.W. 700,88 Ark. 302
• Parties: PRYOR v. PRYOR
• Court: Arkansas Supreme Court

114 S.W. 700

88 Ark. 302

PRYOR v. PRYOR

Supreme Court of Arkansas

November 30, 1908

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Affirmed.

Vaughan & Vaughan, for appellant.

1. The provisions of the decree sought to be modified are classed in law as alimony, and can not be anything else. It is not a debt; nor can it be reached by creditors, etc. 44 Iowa 567; 129 N.Y. 566; 44 Wis. 354; 184 Ill. 375; 45 Id. 167; 64 Vt. 302, 495; 99 S.W. 830; Kirby's Digest, § 2682; 184 Ill. 375; 181 U.S. 183.

2. The power of a court of equity to alter or modify the terms of a decree relating to alimony is well settled. Kirby's Digest, §§ 2861-3; 2 Bish. Mar. Div. & Sep §§ 872, 875; 1 Cur. Law 74; 9 Id. 95; 7 Id. 112, n. 94, 1189 (sec. 6), 1190; 14 Cyc. 784 c note 95; 38 Ark. 119 (127); 51 S.W. 819; 5 Paige, Ch. 509; 4 Id. 516.

3. The facts in this case justify a modification of the decree. Kirby's Digest, § 2683; 73 Ark. 470-2; 2 Bish. Mar. Div. & Sep. § 875; 77 Ill. 346; 75 Wis. 342; 37 Id. 219; 38 Ark. 119; 51 S.W. 818; 42 Ark. 495; 40 L.R.A. 585; 57 Ark. 229.

Ratcliffe, Fletcher & Ratcliffe, for appellee.

Courts favor agreements and settlements of this kind, and always approve and sustain them unless greatly unjust and inequitable, and when the court passes upon them and approves them they are final. 28 Oh. St. 596; 74 Mo. 26; 49 N.H. 69; 25 N.J.Eq. 548. Courts have no power to grant relief in such cases. 60 Ill. 241; 125 Id. 608; 77 Me. 377; 25 Ind. 458; 3 Paige, 483; 64 Me. 484; 108 N.W. 8; 64 Oh. St. 369; 40 Ore. 477; 52 Kans. 724; 38 Vt. 248; 80 S.W. 1187; 18 Ark. 320; 38 Id. 119; 59 Id. 441.

OPINION

MCCULLOCH, J.

In the year 1906, appellant, James F. Pryor, a resident of Pulaski County, Arkansas, instituted in the chancery court of that county a suit against his wife, appellee Laura E. Pryor, for divorce on the ground of willful desertion. It appears that they had been living separate and apart from each other for several years, appellee having resided in Indianapolis, Indiana, since she deserted her husband.

On April 21, 1906, during the pendency of the suit for divorce, they entered into the following agreement, which was reduced to writing and signed by both parties:

"This agreement between James F. Pryor and Laura E. Pryor, his wife, witnesseth:

"That for the purpose of mutually settling the property rights between the parties hereto as involved in the case of said J. F. Pryor v. Laura E. Pryor, in the Pulaski Chancery Court, wherein the said James F. Pryor is seeking a divorce from Laura E. Pryor. it is hereby agreed:

"First. That the said James F. Pryor shall execute to the said Laura E. Pryor a warranty deed to the property now occupied by her in the city of Indianapolis, State of Indiana, said property to be conveyed in fee to her.

"Second. That the said James F. Pryor shall pay the dues and expense charges upon one thousand dollars of the stock of the Argenta Building & Loan Association, now standing in the name of the said Laura E. Pryor, until the said stock is fully matured in accordance with the charter and by-laws of the said building and loan association, at which time the full amount of said stock shall be drawn by the said Laura E. Pryor from the said building and loan association.

"Third. That the said James F. Pryor shall pay the said Laura E. Pryor the sum of five hundred dollars ($ 500.00) in cash; that he will also pay the fees of Ratcliffe & Fletcher to the amount of one hundred dollars ($ 100) and the fees of J. H. Harper to the amount of fifty dollars ($ 50), as the attorneys of said Laura E. Pryor in said matter.

"Fourth. That the said James F. Pryor shall also pay the said Laura E. Pryor the sum of sixty dollars ($ 60) per month, on the first day of each and every month after this date, so long as she may live, unless she shall again marry, in which event the payment of the said sixty dollars ($ 60) per month shall cease; but nothing except the remarriage of the said Laura E. Pryor shall excuse or relieve the said James F. Pryor from the payment of the said sixty dollars ($ 60) per month; and in case of his death prior to the death of said Laura E. Pryor the said sixty dollars ($ 60) per month shall remain and continue an obligation against his estate and a lien upon the property hereinafter mentioned, towit: lots one (1), two (2), and three (3), and fractional lots ten (10), eleven (11), and twelve (12), in block forty-one (41), in the city of Argenta, Pulaski County, Arkansas.

"Fifth. That the said James F. Pryor will pay towards the support of the three children of the said James F. and Laura E. Pryor the sum of fifteen dollars ($ 15) per month, each, until they shall respectively arrive at the age of twenty-one (21) years. If said children, or either of them, shall be living with the said Laura E. Pryor, the amount for the support of such child or children as may be living with her shall be paid to her on the first day of each and every month.

"Sixth. That, in order to secure the faithful and prompt performance of the obligations herein contained on the part of the said James F. Pryor, towit, the payment of the said building and loan association dues and expenses, the payment of the said sum of sixty dollars ($ 60) per month to the said Laura E. Pryor, and the payment of the said sums of fifteen dollars ($ 15) per month for the benefit of each of the children aforesaid, the said James F. Pryor shall execute to the said Laura E. Pryor a mortgage upon the Argenta property as aforesaid; and it shall also be specified in any decree of divorce that may be rendered in the cause aforesaid that the performance of the agreements of the said James F. Pryor, as aforesaid, shall be a charge and a lien upon the property aforesaid, and that on failure to pay said amount, or either thereof, an execution may issue as at law against the said James F. Pryor, and may be enforced against the property aforesaid or any other property of the said James F. Pryor, and the lien of said mortgage and of said decree shall remain upon the property as aforesaid until the agreements as aforesaid shall be fully complied with in accordance with the terms as aforesaid, such execution to issue at the end of twenty (20) days thereafter from any default as may be directed by the said Laura E. Pryor.

"Seventh. That the said James F. Pryor shall pay all the costs in the case aforesaid, and shall pay the costs of recording the mortgage aforesaid."

On April 23, 1906, a decree was entered by the Pulaski Chancery Court granting a divorce to appellant from his wife and awarding the custody of the three children to the wife. The decree recites the execution of the aforesaid agreement, copying it in full, and proceeds as follows:

"It is considered and ordered that the said agreement be and is hereby made a part of the decree of this court in this case. That said Laura E. Pryor have and recover of and from the said James F. Pryor the several amounts mentioned in accordance with the terms thereof. That, for the purpose of securing the full and complete performance of said agreement, the same is hereby declared a lien upon the property mentioned therein prior to all other liens or claims, and, in default of payment of said amounts or either thereof for twenty days at any one time, then execution shall issue as at law for the amount or amounts that may be due, which may be enforced against said property, or any part thereof, or any other property which may belong to the said James F. Pryor.

"It is further ordered that said James F. Pryor promptly pay all taxes and assessments that may be levied upon or assessed against said property as the same may become due in accordance with the laws of the State of Arkansas, and in case of failure to do so execution may issue therefor, as hereinbefore provided in case of failure to comply with other terms of said agrement."

Pursuant to said agreement and the decree of court, appellant on April 24, 1906, executed to appellee a mortgage on the Argenta property to secure payment of the amounts named in the agreement. He paid the dues on the building and loan association stock until it was matured and the face value, $ 1,000, was paid over to appellee; and he paid to appellee the sum allowed for support for herself and sons up to August, 1907, and thereafter paid her only the sum of $ 65 per month.

He then filed his petition in the Pulaski Chancery Court, praying for an alteration of the allowance to appellee by reducing it to $ 50 per month for herself, alleging that his property in Argenta, which was all he owned, was unproductive, and that he was earning $ 125 per month in his work as railroad conductor, and was financially unable to continue the payment of $ 105 per month to his wife and children. He further alleged that the two eldest boys, then seventeen and twenty years old respectively, were earning reasonably good salaries sufficient for their living expenses, and that the youngest boy belonged to the United States Navy.

Appellee appeared by her solicitors, and resisted the alteration of the decree, and asked that the court order execution for the unpaid amount due in accordance with the terms of the agreement and decree.

The court denied the prayer of the petition on the ground that the original decree fixing the amount of alimony and settling the property rights of the parties by their consent and agreement in writing was "a complete and final settlement of all matters as to said divorce and binding upon the parties, and this court has no power to alter or amend the same for any of the causes in said petition." And the court awarded execution against appellant for the sum of $ 370 found to be due and unpaid under the...