Reeves v. Andersen

• Decision Date: 18 October 1965
• Docket Number: No. 9631,9631
• Citation: 406 P.2d 812,89 Idaho 512
• Parties: Reginald R. REEVES, Plaintiff-Appellant, v. Robert A. ANDERSEN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 812

406 P.2d 812

89 Idaho 512

Reginald R. REEVES, Plaintiff-Appellant, v. Robert A. ANDERSEN, Defendant-Respondent.

No. 9631.

Supreme Court of Idaho.

Oct. 18, 1965.

Alvin Denman, Idaho Falls, for appellant.

Petersen, Moss & Olsen, Idaho Falls, for respondent.

SMITH, Justice.

This is an appeal from a summary judgment dismissing appellant's action on a promissory note. The trial court granted respondent's motion for summary judgment on the ground, urged by respondent, 'that there is no genuine issue of material fact to be determined with respect to Defendant's [respondent's] defense of the discharge in bankruptcy of the debt complained of in the complaint.' I.R.C.P. 56(c).

Appellant in his complaint alleges that on December 20, 1963, respondent executed and delivered to appellant his interest bearing promissory note in the principal sum of $475, payable $25 on January 3, 1964, and the balance on or before April 15, 1964; that the note was given in promised payment of counsel fees and court costs incurred by respondent's then wife in contested separate maintenance and divorce proceedings, which resulted in a decree of divorce granted the wife requiring payment of support and alimony, and that respondent has paid no sum on the note. Appellant prayed for judgment for the principal sum of the note and interest, together with attorneys fees.

The divorce was granted and the decree entered on December 23, 1963.

Respondent in his answer denies that he executed the alleged $475 promissory note. He alleges that he signed a note in blank and authorized appellant to fill it in for the amount of $150 and no more, and that therefore the alleged note for $475 is void.

As an affirmative defense respondent alleges that on April 14, 1964, he filed his petition to be adjudged a bankrupt, and that he scheduled the alleged promissory note in the bankruptcy proceeding.

On October 2, 1964, respondent filed his motion for summary judgment together with his supporting affidavit, setting forth the filing of his petition in bankruptcy, the first meeting of creditors, and that the creditors were given until July 6, 1964 to file objections to the discharge of the bankrupt; that no objections having been filed respondent was discharged in bankruptcy on September 29, 1964; that scheduled amoung respondent's debts was the promissory note alleged in appellant's complaint; that the decree of divorce contained no award of attorneys fees. Respondent then alleges in his affidavit the conclusion, that the note does not represent an award of attorneys fees to appellant, and that the debt was discharged in the bankruptcy proceeding. Attached to the affidavit is a certified copy of the Discharge of Bankrupt, dated September 29, 1964, discharging respondent from debts and claims which by Act of Congress relating to bankruptcy, are made provable against his estate, 'except such debts as are, by said Act, excepted from the operation of a discharge in bankruptcy.'

Appellant assigns as error the ruling of the trial court that the promissory note given by respondent husband for his wife's attorneys fees incurred in the divorce action, was discharged in respondent's bankruptcy proceeding; also assigns as error, the granting of respondent's motion for summary judgment.

While there is a dispute between the parties as to the principal sum of the note, it is clear that respondent accepted responsibility for payment to a third person, i.e., appellant, of his wife's attorneys fees and costs incurred by her in the divorce action, the amount of such assumed debt to be evidenced by a promissory note.

It is also clear that, although the parties stipulated the custody and support provisions contained in the divorce decree, they did not stipulate any award of attorneys fees in favor of the wife to be contained in the decree; and that the decree contained no provision awarding attorneys fees in favor of the wife payable by respondent; nor was the jurisdiction of the trial court invoked, nor was it requested to exercise its discretion, to make a determination in the premises.

Appellant relies on I.C. § 32-704, which reads:

'Allowance of support and suit money.--While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.'

In Miller v. Miller, 88 Idaho 57, 396 P.2d 476 (1964), 'alimony' is defined:

'Generally the term 'alimony' is used to designate payments which the husband makes to the wife under a court order for her support pending a divorce action or after a divorce has been granted.' Citing 3 Words and Phrases, p. 178. 396 P.2d at 479.

In the Miller case the Court held that an agreement between the parties, wherein the former husband had agreed to provide support for the divorced wife, was valid even though the so-called 'alimony agreement' had not been made a part of the divorce decree, inasmuch as support and property settlement agreements are recognized without an award for support having been made by the court. Beard v. Beard, 53 Idaho 440, 24 P.2d 47 (1933); Bainbridge v. Bainbridge, 75 Idaho 13, 265 P.2d 662 (1954); Kimball v. Kimball, 83 Idaho 12, 356 P.2d 919 (1960). The Court in so holding followed the ruling of the Beard case, supra, quoting from Daniels v. Benedict, (8th Cir. 1899) 97 F. 367, at 372-373, as follows:

'The contract of separation, therefore, like agreements between strangers, was valid and binding, unless it was illegal, immoral, or violative of public policy. There is certainly nothing illegal in an agreement for a husband and wife to live separate and to divide their property. There is no moral turpitude in such a contract, nor can it be said at this day to be otherwise than in accord with the public policy of England and the United States. * * * Repeated decisions of the courts of this country announced the same conclusions, and enforced the performance of these contracts, until in 1869, in Walker v. Walker's Ex'r, 9 Wall. 743, 750 , Mr. Justice Davis, in delivering the opinion of the supreme court, declined to discuss the question, and declared that: 'Contracts of this nature, for the separate maintenance of the wife through the intervention of a trustee, have received the sanction of the courts in England and in this country for so long a period of time that the law on the subject must be considered as settled.''

17 C.J.S. Constracts § 235c; 27B. C.J.S. Divorce § 301(2)a; 17A Am.Jur. Divorce and Separation §§ 890 and 891.

In American Surety Co. v. McKiearnan, 304 Mich. 322, 8 N.W.2d 82, 145 A.L.R. 1235 (1943), the surety company paid defalcations of one McKiearnan, a bonded employee of American Express Company. McKiearnan then executed and delivered to the surety company his promissory note. After about six months, McKiearnan took bankruptcy. The discharge excepted 'debts as are by law excepted from the operation of a discharge in bankruptcy.' Thereafter...