Sharp v. Sharp

• Decision Date: 11 October 1941
• Docket Number: 35193.
• Citation: 117 P.2d 561,154 Kan. 175
• Parties: SHARP v. SHARP.
• Court: Kansas Supreme Court

117 P.2d 561

154 Kan. 175

SHARP v. SHARP.

No. 35193.

Supreme Court of Kansas

October 11, 1941

Syllabus by the Court.

The statute directing a court on granting a divorce to provide for the support and education of minor children of the marriage authorizes the making of such provision for the children only during their minority. Gen.St.1935, 60-1510.

Under the statute providing that when a divorce is granted, the court shall make provision for the custody, support, and education of the minor children of the marriage, the court has a continuing jurisdiction to modify or change any order as to the support and education of such minor children when the circumstances render such change proper, but any new order cannot increase or decrease amounts past due. Gen.St.1935, 60-1510.

Installments granted in divorce action for the support and education of minor children of a marriage, when due and unpaid, become "final judgments" and may be collected in the same manner as other judgments. Gen.St.1935, 60-1510.

Where recovery is sought on an obligation payable by installments the statute of limitations runs against each installment from the time the installment becomes due, and the rule applies to judgments payable in installments.

"Quasi contracts", which are contracts implied in law, are not true contracts, but are obligations created by law for reasons of justice, and are no more than a legal device to enforce noncontractual duties.

Generally a "quasi contract" is an "implied contract" within meaning of the limitation statute providing that an action on contract, not in writing, express or implied, must be brought within three years. Gen. St.1935 60-306.

A domestic "judgment" is not an "implied contract" within meaning of the statute providing that an action on a contract not in writing, express or implied must be brought within three years. Gen.St.1935, 60-306.

Where, on the granting of a divorce, provision was made for the support and education of the children of the parties, payable in installments, the three-year statute of limitations, which was applicable, began to run against each installment from the time that it became due. Gen.St.1935, 60-306.

A domestic judgment is not a "contract" within meaning of statutory provision that in any case founded on contract, when any part of the principal or interest shall have been made, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed, after such payment, acknowledgment or promise, but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. Gen.St.1935, 60-312.

1. The statute directing the court upon granting a divorce to provide for the support and education of the minor children of the marriage authorizes making provision for the children only during their minority. G.S. 1935, 60-1510.

2. The district court has power to modify or change any previous order with respect to payments for the support and education of the minor children of the marriage whenever circumstances render such change proper, but any new order cannot increase or decrease amounts past due.

3. Installments for the support and education of the minor children of the marriage, when due and unpaid, become final judgments and may be collected in the same manner as other judgments.

4. Where upon granting a divorce the provision made for the support and education of the children is payable in installments, the statute of limitations begins to run against each installment from the time it becomes due.

5. A domestic judgment is not an implied contract within the meaning of subdivision two of section 60-306, but is governed by the sixth subdivision of that section.

6. A domestic judgment is not a contract within the meaning of the part payment clause in 60-312, and a part payment of such judgment will not toll the statute of limitations.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Mazel L. Sharp against W. H. Sharp to recover installments due under a judgment in a divorce action for support, maintenance, and education of the children of the parties, and for drug bills, doctor bills and expenses incident to sickness. From a judgment sustaining a demurrer to the petition, the plaintiff appeals.

Judgment affirmed.

Sullivan Lomax, of Cherryvale, for appellant.

L. P. Brooks, of Wichita, for appellee.

ALLEN Justice.

This appeal is from a judgment sustaining a demurrer to plaintiff's amended petition.

On December 31, 1920, in the district court of Montgomery county, Mazel L. Sharp secured a decree of divorce against W. H. Sharp. The care, custody and control of the two minor children, a girl aged nine and a boy aged seven, were awarded the plaintiff. It was adjudged and decreed that the defendant W. H. Sharp pay to the plaintiff the sum of fifty dollars per month for the support, maintenance and education of the children; that in addition thereto the defendant should pay all drug bills, doctor bills or other expenses incident to the sickness of the children. The daughter became of age in July, 1932, and the son in July, 1934.

The amended petition, after setting forth the foregoing facts, alleged that the "defendant failed, neglected and refused to make all the payments due as was by the court ordered"; that he made payments every few months and that the last payment was made on September 27, 1938. It was alleged that plaintiff had expended large sums for hospital and doctor bills for both of the children out of her own funds; that such bills had been sent to the defendant, but that defendant had neglected and refused to pay them. Plaintiff alleged that all the money paid by defendant under the decree was applied by the plaintiff to the support, education and maintenance of the children. It was alleged there was a balance due on the monthly payments of $4,900.15, and for doctor bills and hospital bills the sum of $213.80. Plaintiff demanded judgment against defendant in the sum of $5,113.95 and for costs of the action.

If the action was barred by the statute of limitations the judgment of the trial court in sustaining the demurrer to the petition must be sustained.

Our statute G.S.1935, 60-1510, provides that when a divorce is granted, the court shall make provision for the custody, support and education of the minor children of the marriage. The section contemplates that provision shall be made for the support and education of the children until they become of age. Emery v. Emery, 104 Kan. 679, 180 P. 451.

Under the statute the court has a continuing jurisdiction to modify or change any order as to the support and education of such minor children when the circumstances render such change proper (Greenwood v. Greenwood, 85 Kan. 303, 116 P. 828; Dague v. Dague, 126 Kan. 405, 267 P. 988), but such order must operate prospectively. Davis v. Davis, 145 Kan. 282, 65 P.2d 562; Wilkinson v. Wilkinson, 147 Kan. 485, 77 P.2d 946.

With respect to installments due and unpaid, the judgment was final. Burnap v. Burnap, 144 Kan. 568, 61 P.2d 899; Wilkinson v. Wilkinson, supra. In Paul v. Paul, 121 Kan. 88, 245 P. 1022, in a divorce action in Nebraska an order for temporary alimony payable in installments was made. An action on the judgment for the unpaid installments was brought in this state. As the order as to the unpaid installments had not been modified by the Nebraska court, it was held the judgment was final and the action would lie. The rule is the same in other jurisdictions. 2 Beal, Conflict of Laws, p. 1393.

In Cheever v. Kelly, 96 Kan. 269, 150 P. 529, it was held, as stated in the syllabus: "When installments of alimony awarded by a decree of divorce and alimony become due and are not paid, they may be collected by suit, judgment, and execution, although the decree provided it should not be a lien on the defendant's property."

As the court is without power to modify or change past due installments for the support and education of minor children (Davis v. Davis, supra), we think such accrued unpaid installments may be collected by suit, judgment and execution the same as past due unpaid alimony installments. 2 Freeman on Judgments, 5th Ed., Section 1067.

The rule is firmly established that when recovery is sought on an obligation payable by installments, the statute of limitations runs against each installment from the time it becomes due, and the rule applies to judgments payable in installments. McGill v. McGill, 101 Kan. 324, 166 P. 501; 34 C.J. p. 1088; 2 Freeman on Judgments, 5th Ed. Section 1077; 34 Am.Jur., Limitations of Actions, Section 142; Anno., 82 A.L.R. 317.

Was the present action barred by the statute of limitations? Was the statute tolled by the last payment made by defendant? It will be recalled that the youngest child became of age in July, 1934, and that defendant made the last payment on September 27, 1938. The present action was commenced in July, 1940.

Our statute G.S.1935, 60-306 provides:

"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

"First. Within five years: An action upon any agreement, contract or promise in writing.

"Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.

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"Sixth. An action for relief not hereinbefore provided for can only be brought within five years after the cause of action shall have accrued."

Our statute, G.S.1935, 60-312 provides: "In any case founded...