Reynolds v. Reynolds
| Decision Date | 06 April 1943 |
| Docket Number | 30757. |
| Citation | 137 P.2d 914,192 Okla. 564,1943 OK 133 |
| Parties | REYNOLDS v. REYNOLDS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 8, 1943.
Syllabus by the Court.
1. An action to recover matured unpaid installments of child support money provided in a final divorce decree is one to recover money upon a debt created by law and evidenced of record rather than an action upon a final judgment and may be maintained either in the court which rendered the original decree or in any other court of competent jurisdiction.
2. In such an action the person who has been awarded the custody of the child and to whom the support money is directed to be ultimately paid is the real party in interest so far as the right to demand and receive said money is concerned and may assert such right, irrespective of consent or non-consent of the child involved, to any and all installments which accrue during the minority of the child and which remain unpaid.
3. In an action tried to the court without the intervention of a jury the admission or exclusion of evidence rests largely in the sound legal discretion of the court and in the absence of a showing that such discretion has been abused and the party complaining has sustained substantial prejudice the ruling of the trial court thereon will not be disturbed.
4. The requirements of the intangible tax law, 68 O.S.1941 § 1501 et seq., are confined to the property therein defined and an action such as the one here involved is not one which comes within the provisions of said act and the reception of proof on motion for new trial that compliance with the act has been had, while irregular constitutes at most harmless error.
Appeal from Court of Common Pleas, Tulsa County; Bert E. Johnson Judge.
Action by Vera H. Reynolds against W. D. Reynolds to recover accrued unpaid installments of child support money alleged to be due under provisions made therefor in a divorce decree. From a judgment for plaintiff for $2,453.70 with interest at 6%, the defendant appeals.
Judgment affirmed.
Milton W. Hardy and H. O. Bland, both of Tulsa, for plaintiff in error.
H. L Smith and Robert B. Thomas, both of Tulsa, for defendant in error.
This action was instituted in the district court of Tulsa County on October 4, 1939, by the defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error hereinafter referred to as defendant, to recover a judgment for accrued unpaid installments of child support money alleged to be due under the provisions made therefor in a divorce decree.
The plaintiff in her petition alleged, in substance, that she and defendant had been divorced by the district court of Washington County on August 17, 1932, and that plaintiff had been awarded the custody of the minor child of the parties and defendant had been directed to pay to the court clerk of said county the sum of $100 per month to be paid to the plaintiff for the support and maintenance of said minor child during her minority; that the defendant had paid no part of the money which he had been directed to pay and that the entire sum had become due and payable and that plaintiff had supported and maintained the child during her minority and that defendant was therefore indebted to plaintiff in the sum of $4,800 for which sum together with interest from the maturity of each installment plaintiff prayed judgment. The defendant in his answer admitted the previous marital status of the parties and the decree of divorce and that the same contained a provision which required him to pay the sum of $100 per month to the court clerk to be paid to the plaintiff for the support of the minor child of plaintiff and defendant. Defendant alleged however that said decree had been modified by verbal instructions given him at a hearing held on September 26, 1932, pursuant to citation which plaintiff had caused to be issued; and that furthermore said provision relative to child support had been fully satisfied by expenditures which defendant had made directly for the support, education and maintenance of the child and that all installments which had accrued and remained unpaid for more than five years prior to the institution of the instant action had been barred by the statute of limitations. The district court of Tulsa County on its own motion transferred the cause to the court of common pleas. The parties thereupon waived a jury and tried the cause to the court. At the trial the parties stipulated that the child involved had attained her majority on April 10, 1936, and defendant admitted that he had made no payments to the court clerk of Washington County as he had been directed by the decree of August 17 1932. The evidence adduced at the trial was in conflict in some material respects but disclosed, substantially, the following state of facts: that at the hearing had on September 26, 1932, there was no record made of what was done but that thereafter on March 31, 1941, an order nunc pro tunc was entered which recited that the citation for contempt had been dismissed; that in September, 1933, the defendant placed the child in a boarding school at Tulsa and paid her board and tuition there during the succeeding school years until the child attained her majority, which the parties stipulated occurred on April 10, 1936, that the plaintiff had the custody of the child and supported and maintained her when she was not in school and furnished her some support and maintenance during the time she was in school; that the decree of August 17, 1932, had never been modified or vacated or any attempt made so to do during the minority of the child involved and that plaintiff had made no attempt to enforce payment of the support money subsequent to the hearing had on September 26, 1932, and until the institution of the present action. The trial court found from the evidence, substantially as above narrated, that the decree of August 17, 1932, had never been vacated nor modified; that plaintiff had the custody of the child during her minority; that she was entitled to the support money which defendant had been directed to pay to the court clerk; that she had received no portion thereof and that by reason of her failure to take action to enforce payment that all installments which had accrued and remained unpaid for more than five years prior to October 4, 1939, were barred by the statute of limitations and that likewise the defendant was not entitled to claim credit for any expenditures which he may have made directly to the child or for her benefit during said period and that plaintiff was entitled to recover only those installments which came due within the limitation period prior to the institution of the case at bar with interest on said installments from the date of their maturity and thereupon rendered judgment in favor of plaintiff for the aggregate sum of $2,453.70, with interest thereon at six per cent from the date of said judgment. Motion for new trial, which challenged the jurisdiction of the court to enter a judgment for failure of allegations and proof required under the intangible tax law, 68 O.S.1941, § 1515, was overruled after plaintiff was permitted to introduce proof to the effect that she had returned and paid the tax required by said law; defendant appeals.
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