Scanlon v. Scanlon, 5868
| Citation | 1955 NMSC 35,60 N.M. 43,287 P.2d 238 |
| Decision Date | 27 April 1955 |
| Docket Number | No. 5868,5868 |
| Parties | Gladys Kemp SCANLON, Plaintiff-Appellant, v. Martin F. SCANLON, Defendant-Appellee. |
| Court | Supreme Court of New Mexico |
Rodey, Dickason, Sloan, Mims & Akin, Charles B. Larrabee, Albuquerque, for appellant.
W. A. Keleher, A. H. McLeod, Keleher & McLeod, J. C. Ryan, Albuquerque, for appellee.
Hannett & Hannett, Jones, Stiff & Briggs, and Richard C. Losh, Albuquerque, as amici curiae on motion for rehearing.
In this case the plaintiff filed a petition asking the court for an order increasing an allowance from the defendant, from whom she was divorced, for her support and maintenance.
Originally, the responsibility of the defendant to pay to the plaintiff monthly installments for her support and maintenance, was a contract entered into between the parties bearing the date April 28, 1947. This agreement, executed in New York, provided, among other things, that the husband would pay to his wife the sum of fifty dollars per month for her support and maintenance. Other details of the contract will be shown after the nature of the litigation has been stated.
About twenty days after the agreement above mentioned was entered into by the parties, the plaintiff filed her suit for divorce in the district court of Bernallilo county New Mexico. The complaint alleged that plaintiff and defendant were residents of said county and state; that they were married on May 15, 1934 and that they were still husband and wife; that no children had been born of the marriage; that they were incompatible to the extent that they could not live together in peace and harmony; and that they had, because of incompatibility, lived separate and apart since October 1945--about eighteen months.
The plaintiff then alleged that as husband and wife, plaintiff and defendant had entered into a separation agreement on the 28th day of April 1947 and a copy of this agreement was attached to the complaint and made a part thereof. Plaintiff further stated that by the terms of said separation agreement the parties had adjusted all rights in the marital and community property of the parties. She prayed an absolute divorce and that the decree should provide for the property rights of the parties in accordance with the provisions of the attached exhibit; and that the decree provide that alimony be paid to the plaintiff in accordance with paragraph two of the agreement.
For answer defendant stated that he was unable to deny the allegations of the complaint, and he prayed the judgment of the court.
On June 20, 1947 a decree was entered in the divorce suit in which an absolute divorce was granted. The said decree contained the following paragraph:
Nearly seven years later, on February 17, 1954, plaintiff filed her petition in said suit praying that the award of support and maintenance made by the court 'be increased to a sum as to the court may seem just, and for such other and further relief as to the court seems fit.' The prayer of this petition was based upon facts alleged as follows: (1) that the court, in the decree of divorce, awarded to plaintiff the sum of fifty dollars per month for her support and maintenance; (2) that since the making of the decree plaintiff became ill and incurred extraordinary medical expense and expects to continue to incur such expense; (3) that the sum of four hundred and fifty dollars monthly is necessary for her support and maintenance in the state and manner to which she was accustomed at the time the decree was entered; that she had been forced to rely on the benevolence of relatives for her support; that the financial status and physical condition of the plaintiff has undergone material and substantial change for the worse since the decree was entered.
Plaintiff alleged that the financial status of the defendant had undergone material and substantial change for the better since the entry of said decree; and that defendant at the time of the entry of the decree was a brigadier general in the Army Air Force having an annual base pay of about six thousand dollars; that he had become vice-president of Republic Aircraft Corporation with an annual income, according to the information and belief of the plaintiff, of between fifteen and twenty thousand dollars.
Plaintiff's contention is that the decree awarded to her the sum of fifty dollars to be paid monthly as alimony and that the obligation and responsibility of defendant for her support is continuing and that the decree entered by the court is subject to such modification at any time, whether by increase or by decrease of the amount allowed for support and maintenance.
It is defendant's contention that the court is without jurisdiction to in any way change or modify the decree as to the support of the plaintiff. Defendant asserts that the rights of the parties are based upon the terms of the agreement entered into between them before the divorce was granted, and that any change must be by agreement of the parties or by a suit upon the contract. Defendant states that the provision for payment to the plaintiff of the sum of fifty dollars a month for her support and maintenance is merely a part of a property settlement agreement and is not alimony or in the nature of alimony and that the court is powerless to alter the terms of the decree, even though the agreement, a copy of which was attached to plaintiff's complaint and referred to in the decree as being so attached, was approved and confirmed and in the words of the court 'made a part of this decree as fully as though specifically included herein in full.'
These contentions of the parties are diametrically opposed and so require a statement as to the terms and conditions of the agreement entered into by the parties.
The agreement states that the parties were married in New York on May 15, 1934 and that at the time it was made they were living separate and apart and had been so living for about one and one-half years, and that they had agreed to live separate and apart during their natural lives.
The consideration stated in the agreement was the mutual promises, covenants and agreements contained therein.
They agreed to live separate and apart, each free from the marital control or authority of the other and each at any place or places of his or her choice; and the defendant promised to pay 'to the party of the first part for her support and maintenance the sum of fifty dollars her month, payable on the first day of each and every month while both remain alive * * *' This obligation, however, was subject to two provisions which would relieve defendant from making any payments. The first of these was that in the event of the retirement of the second party from the military service there should be no further payments. The next provision was that in case either of the parties should secure a divorce and either should thereafter again marry, then said payments should immediately cease and terminate. The second paragraph of the agreement further provides that both parties acknowledge that the monthly sum to be paid,
'* * * is a fair, suitable, and proper sum to be paid to the party of the first part for her support and maintenance; that it is commensurate with the financial means and social position of both parties; that it will enable the party of the first part to maintain herself on the same scale of living to which she has been accustomed; and that it is within the ability of the party of the second part to pay.'
The agreement provided that the first party, as inducement to the second party to enter into the agreement, represents and warrants that she has not in the past contracted debts or created liabilities binding on the second party or his legal representatives, heirs or assigns; and further that she will not in the future contract and debts or create any liabilities which will be binding on the second party or his representatives, heirs or assigns; and that she will save him harmless and indemnify him against and and all debts and liabilities previously contracted or incurred or any that might in the future be contracted or incurred by her.
The agreement provided that in case either of the parties should institute an action for absolute divorce from the other or any other action relating to the marital status of the parties,
The agreement provided for payment by the second party, defendant, to a law firm, of the sum of five hundred dollars, as attorney's fees for the first party, and that the second party will not thereafter be liable for any other or further legal services rendered to the first party.
The agreement provides that the parties will execute and deliver all instruments necessary to carry out its terms.
A further provision of the agreement reads as follows:
'That there shall be no modification, waiver or amendment of any of the covenants of this agreement unless the same is in writing and executed by the parties hereto.'
Whether the agreement of the parties is to be interpreted under the laws of New York, where it was made, or of New Mexico, where it became a part of a decree of divorce of the parties,...
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1998 -NMCA- 36, Hennessy v. Duryea
...on district court to hear subsequent, independent action to divide property left undivided in divorce decree): Scanlon v. Scanlon, 60 N.M. 43, 49, 287 P.2d 238, 242 (1955) (State's domestic relations statutes become part of divorce decree). Thus, if a military retirement benefit is not deal......
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Ruggles v. Ruggles
...sought to evade by entering into a subsequent separation agreement) and cited no authority itself except Brister and Scanlon v. Scanlon, 60 N.M. 43, 287 P.2d 238 (1955), which, like Brister, involved modification of an alimony or support agreement. Id. at 46, 54, 287 P.2d at 240, While this......
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Spingola v. Spingola
...the father's contentions on this issue were supported by the evidence, he would still be confronted by our holding in Scanlon v. Scanlon, 60 N.M. 43, 287 P.2d 238 (1955), that a contract for alimony incorporated in a divorce decree becomes merged into the decree and the decree is subject to......
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Wallis v. Smith, 20,272.
...devise her estate to a man in exchange for marriage was not judicially enforceable for public policy reasons); cf. Scanlon v. Scanlon, 60 N.M. 43, 56, 287 P.2d 238, 247 (1955) (voiding terms of prenuptial contract that allowed husband to terminate his wife's support if he remarried or termi......