Rhinehart v. Rhinehart, 2023

• Decision Date: 25 January 1938
• Docket Number: 2023
• Citation: 75 P.2d 390,52 Wyo. 363
• Parties: RHINEHART v. RHINEHART
• Court: Wyoming Supreme Court

75 P.2d 390

52 Wyo. 363

RHINEHART v. RHINEHART

No. 2023

Supreme Court of Wyoming

January 25, 1938

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Divorce proceeding by Clara A. Rinehart against Charles H. Rinehart. Default judgment granted plaintiff divorce and $ 100 per month alimony, and defendant moves the court to vacate the decree. Demurrer to the motion was sustained, and the defendant appeals.

Reversed, with direction.

For the appellant, there was a brief by George F. Guy and Walter Q Phelan of Cheyenne and oral argument by Messrs. Guy and Phelan.

This case is presented on appeal solely upon defendant's exception to the court's ruling, sustaining the plaintiff's demurrer to the first ground for modification. The demurrer admits all of the allegations contained therein for the purpose of argument thereon. "Did those allegations state facts sufficient to constitute a ground for modification of a decree in accordance with the stipulation, or as an alternative, would they state facts sufficient to warrant the court in vacating said decree and allowing the defendant to come in and answer?" A ruling pertinent to this controversy is set forth at 19 C. J. 252, and also at page 340 of the same volume. The parties interested entered into an agreement which was not collusive, nor fraudulent, and defendant relied upon said agreement in his dealings with the plaintiff, and that plaintiff abided by the terms thereof for eight months after the entry of the divorce decree.

For the respondent, there was a brief and an oral argument by Allen A. Pearson of Cheyenne.

In this appeal, a preliminary ruling of the court is complained of, while the final disposition of the case is accepted by the appealing party. In view of this situation, there is nothing before this court for its consideration. There has been a modification of the original divorce decree, reducing payments to be made by defendant from $ 100 to $ 85.00 per month, and this action is acquiesced in by defendant and appellant. The authorities cited by appellant are to the effect that a trial court may disregard a property settlement, if it feels that it is unfair, and that is the situation in this case. 2 Nelson on Divorce 915, 19 C. J. 252; Hill v. Hill, (Colo.) 197 P. 236; Hobbs v. Hobbs, (Colo.) 210 P. 398; Cross v. Cross, (Wash.) 168 P. 168. The demurrer to the first ground for modification was properly sustained. Section 5006, Wyo. Comp. Stats. 1920; Moore v. Moore, (Wyo.) 237 P. 235; Lonabaugh v. Lonabaugh, (Wyo.) 22 P.2d 199; 19 C. J. 273; Bradley v. Bradley, (Cal.) 181 P. 237. The facts in the case of Cross v. Cross are on all fours with the proposition here. The ruling of the court below should be affirmed.

Walter Q. Phelan and George F. Guy in reply.

In Jones v. Kepford, 100 P. 923, it was held that where plaintiff had relied upon a certain theory in the trial court, the Supreme Court would be limited to the theory adopted by the plaintiffs. Delfelder v. State Bank, 38 Wyo. 502; Williams v. McWhorter, 218 P. 791. Mrs. Rinehart took $ 500 worth of furniture paid for by defendant, and $ 500 in cash, when she obtained the divorce. She made a voluntary agreement to this. The stipulation made placed a limit on the recovery, which was abided by for seven months. This would seem to establish that the stipulation was the true agreement of the parties. Dutcher v. Dutcher, 175 P. 975; Meyers v. Meyers, 126 N.W. 841. The case last cited should be governing in a consideration of the case at bar. See also Galusha v. Galusha, 22 N.E. 1116. An appeal does not lie from a ruling on a demurrer. Owen v. R. R. Co., 118 P. 652; Menardi v. O'Malley, 23 P. 68; Greenwalt v. Improvement Company, 92 P. 1008; Turner v. Hamilton, 10 Wyo. 177.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

On February 6, 1935, the plaintiff, Clara A. Rinehart, filed in the district court of Laramie County her petition for divorce against the defendant, Charles H. Rinehart. The parties will be referred to as in the case below. Plaintiff alleged that they were married on July 17, 1911; that four children were born to them, all of whom are of age except Edith, then sixteen years of age; that the defendant is guilty of cruel and inhuman treatment and has offered such indignities to the plaintiff as to render her condition intolerable; that the defendant is able-bodied and is capable of earning the sum of $ 287 to $ 315 per month. Plaintiff accordingly asked for a divorce and that she be awarded such alimony as to the court may seem just, including an attorney fee of $ 100. On the same day, the parties entered into a stipulation. Counsel for both parties stated at the time of the oral argument in this case that at that time the plaintiff was represented by counsel, and that defendant was not represented at all. The stipulation is as follows:

"It is hereby agreed by and between the parties hereto that the defendant will pay and the plaintiff will accept Sixty Dollars per month and the household and kitchen furniture in the house in full of all alimony, temporary and permanent, and that the plaintiff will not hereafter claim or assert a claim to any sum in addition to the amount; this is in addition to any money that plaintiff has saved up to this time. The defendant will not claim any of said moneys. The defendant will pay the attorney fee and costs not to exceed Eighty-five Dollars.

"Dated this 6th day of February, 1935."

The defendant did not appear in the action, and on March 11, 1935, a default was entered against him, the plaintiff was decreed a divorce, attorney fees in the sum of $ 85, and alimony in the sum of $ 100 per month. At the next term of court, the defendant appeared and moved the court to vacate the decree. The application therefor was subsequently amended, and alleges the following facts: That on March 11, 1935, the decree above mentioned was rendered; that defendant defaulted and failed to answer, solely for the reason that a certain stipulation hereinabove mentioned was entered into and upon which he relied; that defendant also gave to the plaintiff the sum of approximately $ 500 in cash as well as all household goods, wares and equipment then owned by the parties, which property was worth not less than $ 500, and that plaintiff agreed to accept the property above mentioned and alimony in the sum of $ 60 per month; that he had and now has a good defense to the action and refrained from interposing it for the reason above mentioned; that it was the understanding that the stipulation would be submitted to the court and made a part of the record in the cause, and that defendant did not learn that this was not complied with until approximately two months after the entry of the decree; that from March to October, 1935, plaintiff accepted the sum of $ 60 per month in accordance with the stipulation, but that on December 10, 1935, plaintiff caused a garnishment to be issued upon the defendant's pay from the Union Pacific Railroad Company; that defendant had done everything in his power to make a success of the marriage of the parties; that plaintiff for a number of years insisted upon living in the state of California and lived there for a year and a half prior to the last separation of the parties, and finally informed the defendant that she would refuse to live with him in Cheyenne; that the defendant has been employed by the Union Pacific Company in Cheyenne for the past twenty years, and that it was impossible for him to go to California; that defendant is unable to state why the terms of the stipulation were not incorporated in the decree and that William C. Kinkead, attorney, who handled the matter, is now deceased; that the property settlement and alimony embodied in the stipulation was a fair and equitable settlement between the parties in the light of the insistence on the part of the plaintiff to live in the state of California, and in the light of the money and other property given to her at the time of her departure; that the plaintiff left for California on March 11, 1935, the date on which the decree was granted, and has ever since resided in that state; that the two older children of the parties reside with her, and are paying board and room to the plaintiff and are contributing in some measure to her support and maintenance. Defendant accordingly asked that the decree of March 11, 1935, be modified so as to require the defendant to pay only the sum of $ 60 per month, in accordance with the stipulation, or that the decree be vacated and the defendant be given an opportunity to interpose an answer in the suit. The plaintiff demurred to the application, and this demurrer was sustained. From this ruling of the court an appeal has been taken to this court. It may be mentioned in this connection that defendant also filed in said court a petition to modify the decree upon another and a second ground; namely, on account of the changed circumstances of the defendant, alleging that he is now receiving $ 65 a month less than he received at the time of the decree. That application was also heard, the court reducing the alimony of $ 100 per month to $ 85 per month.

The question in this case is to what effect the contract entered into between the parties had--that is to say, whether the court had a right to ignore it and award alimony in excess of the amount provided in the contract, and whether the court erred in sustaining the demurrer filed herein. It is laid down in 1 R. C. L. 925 that a husband and wife, if they have been separated, or contemplate immediate separation, and in the absence of collusion as to a divorce, may settle their property rights, including the amount which the husband is to pay as alimony. It...