Rubisoff v. Rubisoff, 41969

• Decision Date: 16 October 1961
• Docket Number: No. 41969,41969
• Parties: Mrs. Beatrice K. RUBISOFF v. Reuben RUBISOFF.
• Court: Mississippi Supreme Court

Page 534

133 So.2d 534

242 Miss. 225

Mrs. Beatrice K. RUBISOFF v. Reuben RUBISOFF.

No. 41969.

Supreme Court of Mississippi.

Oct. 16, 1961.

Smith, O'Hare & Smith, Cleveland, for appellant.

Charles L. Brocato, Vincent J. Brocato, Talbot, Sullivan & Dunbar, Clarksdale, for appellee.

RODGERS, Justice.

This case originated in the Chancery Court of the Second Judicial District of Bolivar County, Mississippi, in which appellant sought to enforce the conditions of a divorce decree, and sought a citation for contempt against the appellee for failure to pay alimony under the decree dated October 24, 1950. Petitioner asked for custody of their adopted child, and for a money judgment, including interest, and certain personal property. The chancery court entered a decree denying appellant custody of their child; but entered a judgment allowing the petitioner $14,070 past due alimony to be paid at $165 per month, without interest, and from that decree this case was appealed to this Court.

It appears from the facts of this case that the appellant and appellee met in the City of Chicago where the appellant was a registered nurse at Mt. Sinai Hospital and the appellee was serving as an intern. They were married on March 14, 1939, and they had no children. In the Fall of 1948, they adopted a male child whose name is Paul Carroll Rubisoff. They moved to West Virginia, where the appellee, Dr. Rubisoff, was employed at Charleston General Hospital, and the appellant, Mrs. Rubisoff, continued her work as a nurse. Dr. Rubisoff's health broke down and his wife nursed him back to health, often giving him blood transfusions from her own body. The parties finally came to Columbia, Mississippi, and thence to Shelby, Mississippi, and for a time the appellant continued to practice her profession as a trained nurse in Clarksdale, Mississippi. Dr. Rubisoff was again ill and the appellant again nursed him back to health. In February 1959, it became necessary for Mrs. Rubisoff to go to the bedside of her father at Crofton, Nebraska, where she remained for approximately two weeks. After this time, the parties became estranged, and in March 1950, Dr. Rubisoff moved to the clinic, separating from the appellant. In May of that year he filed a bill for divorce against appellant. The chancellor entered a decree awarding Dr. Rubisoff a divorce from defendant Beatrice K. Rubisoff, but awarding Mrs. Rubisoff the custody of Paul Carroll Rubisoff, their child, 'subject however, to such changes and modifications of this decree in regard to the custody of said child as conditions of parties and the best interest of said child may justify or require * * *' Mrs. Rubisoff was awarded $250 a month alimony for herself and for the support of their child, together with certain personal property described in the decree.

After the divorce, Mrs. Rubisoff went to New Orleans, Louisiana, to live and to work as a nurse, but she fell upon 'evil days' and was arrested for giving a bad check. Dr. Rubisoff heard of her plight and went to New Orleans for the purpose of obtaining their child. He got Mrs. Rubisoff to give him an order to the nursery where the child was being kept for the purpose of taking the child away. She claims that the Doctor obtained the order so that he could visit the child in the park for one day. The appellee and cross-appellant took the child with him to his home in Shelby, Mississippi, where he has been since April 8, 1951. The appellee and cross-appellant paid the alimony due to the appellant for a period of six month, after which he discontinued his payments. Mrs. Rubisoff alleges that she often begged the defendant to pay the alimony and bring the child back to her, but he refused to do so. The defendant denies that the appellant sought the return of the child or requested him to pay past due alimony, although he admits that she called him from New Orleans on the telephone on several occasions.

The issues to be determined here are: (1) Did the appellant have a vested right in the past due installments of alimony, and if so, is she entitled to legal interest thereon; (2) can the chancery court allow an adjustment against the amount due to a wife for money expended by a husband on their child during a long period of time while it remained in his custody; (3) can the chancery court divest a wife of future alimony payments on the ground of misconduct of the wife after the divorce; (4) was the chancellor in error in disallowing the claim for a money judgment against Dr. Rubisoff for the value of personal property awarded appellant in the divorce decree and later repossessed by defendant; (5) can the chancery court permit payment of a judgment for past due alimony in deferred installments; and (6) did the chancery court commit reversible error in failing to find the defendant, Dr. Rubisoff, guilty of contempt of court?

The corss-appellant, Dr. Rubisoff, claims that the original decree was a fraud upon the court and that the court should not have made any award for past due alimony against the cross-appellee; that the cross-appellee's misconduct violated the terms of the original decree; and that the cross-defendant was guilty of laches because she failed to enforce the decree of alimony for a period of many years.

It appears from the evidence in this case that the original decree for divorce dated October 24, 1950, was an agreed decree insofar as the parties could agree to the form thereof. This Court has held that an agreed decree could be modified by the court. Hughes v. Hughes, 221 Miss. 264, 72 So.2d 677. In this case, however, the original decree was obtained by Dr. Rubisoff, and his bill for divorce sets out the fact that he knew the condition of his wife insofar as she was alleged to be a narcotic addict, but notwithstanding the fact that he had full knowledge of her condition, he agreed that his wife should have custody of their minor child. He cannot now therefore be heard to say said decree was obtained by fraud. See Divorce and Separation, 17 Am.Jur. 624, Sec. 529. The alleged abandonment of the child by Mrs. Rubisoff after the decree does not indicate she obtained a fraudulent decree in a divorce proceeding filed by Dr. Rubisoff, but rather such evidence is useful in determining future custody of their minor child. See Taliaferro v. Ferguson, 205 Miss. 129, 38 So.2d 471.

We cannot agree with the statement of the appellee that laches has run against appellant's claim for alimony in this case; because the testimony indicates, and appellee admits, that she called often over long distance telephone, and the chancellor must have believed that since she was in dire need of support, she had asked for his help. This Court pointed out in the case of Laster v. Ard et ux., Miss.1949, 42 So.2d 437, 739, that 'the question of laches is largely addressed to the sound discretion of the Chancellor, and his decision will not be disturbed on appeal unless it is clearly wrong and amounts to an abuse of discretion.' This Court applied the seven-year statute of limitations in a similar case, Hollis v. Bryan, 166 Miss. 874, 143 So. 687, 688, in which the Court said: 'The complainant was guilty of laches in not bringing suit, or not asserting her rights, within the period allowed by the statute for that purpose.' The true test in determining whether 'laches' exists is whether the delay had resulted in injury, embarrassment or disadvantage to any person, and particularly to the person against whom the relief is sought. See Lightsey v. Lightsey, 1942, 150 Fla. 664, 8 So.2d 399; Annotation 137 A.L.R. 894; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Smith v. Smith, 211 Miss. 481, 52 So.2d 1.

Appellee paid alimony to appellant for a period of six months, but after he obtained custody of their child, he ceased paying appellant. It is a well-settled rule of law in this State that installments of alimony become fixed and vested when due and unpaid. Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608; Gibson v. Clark, 216 Miss. 430, 62 So.2d 585; Lewis v. Lewis, 213 Miss. 434, 57 So.2d 163; Guess v. Smith, 100 Miss. 457, 56 So. 166; Schaffer v. Schaffer, 209 Miss. 220, 46 So.2d 443; Grego v. Grego, 78 Miss. 443, 28 So. 817; 27-B. C.J.S. Divorce Sec. 276(g), p. 190. We therefore hold that payments due appellant became...