Sinkler v. Sinkler
| Decision Date | 26 July 1923 |
| Citation | 194 N.W. 817,49 N.D. 1144 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J.
Defendant appeals from a judgment and order dismissing contempt proceeding and modifying an original decree of divorce.
Reversed in part; affirmed in part.
Reversed and remanded with direction.
Bosard & Twiford and Murphy & Toner, for appellant.
Greenleaf & Wooledge and Palda & Aaker, for respondent.
OPINION
This is an appeal from a judgment and an order of the district court of Ward county, dismissing contempt proceedings against the plaintiff and respondent and modifying an original order and decree of divorce.
On May 19, 1916, E. R. Sinkler commenced a divorce action against Gurly Sinkler, his wife. Answer was in due time interposed denying the charge and asking for temporary alimony and counsel fees. On the 23rd of March, 1917, the defendant in the divorce action served an amended answer on the plaintiff therein and a cross-complaint alleging desertion, praying for absolute divorce, the custody of the children and for other relief. On the same day, plaintiff answered the cross-complaint, denying the allegations thereof generally. On the 23d day of March, 1917, the action was heard in Ward county. On that date the plaintiff and defendant entered into a contract effecting a settlement of their property rights in view of the pending divorce action and the possibility of a decree. By the terms of this agreement, the defendant in that action released all her interests in the real property of the plaintiff; the plaintiff agreed to pay to the defendant, in the event of a divorce, the sum of $ 300 when the decree was signed and the further sum of $ 250 to the counsel for the defendant; plaintiff agreed that his wife should have as her absolute property certain specific personal property; and he would pay her $ 225 monthly during the term of her natural life "as and for permanent alimony." The defendant in consideration thereof, agreed to support the children and keep a home for them without charge to them until they should be twenty-five years of age. It was further, in effect, stipulated that the agreement should be construed as a confession of judgment if the husband defaulted in any payments and that judgment might be entered in the district court of Ward county for each and every installment in default upon the affidavit of Mrs. Sinkler stating the amount due and unpaid, which affidavit was to be submitted ex parte to the district judge and an appropriate order for judgment made thereon and a judgment entered by the clerk of the district court accordingly. Judgments so entered were to become liens upon the real property of the plaintiff and ordinary execution had thereon. It was further stipulated, in case a decree of divorce were made, that the court should decree in full payment of all claims by defendant against plaintiff's property as permanent alimony to the defendant the sum of $ 225 monthly, payable as stipulated. The agreement contained the following stipulation: "Neither party shall at any time apply to any court to either decrease or increase said alimony (hereby fixed at the sum of $ 225 per month)." The contract provided that the stipulation just quoted should be and it was in fact incorporated in the decree.
On the 23d of March, 1917, the court made findings of facts and conclusions of law generally in favor of Mrs. Sinkler for a divorce on the ground of desertion. The sixth finding is hereinafter set forth. The fifth conclusion of law is as follows:
5. "That as permanent alimony the defendant should be awarded the sum of $ 300 payable upon the entry of this decree (and the further sum of $ 250 as and for counsel fees) and the further sum of $ 225 for each and every month during the life of the defendant, payable on the first day of each month, commencing with the first day of April, 1917, said monthly payments should not be increased or diminished at any time or by any court upon the application of either party pursuant to the written agreement of the parties of said action, fixing said alimony."
On the 23d of March judgment was entered in conformity with the finding and the order of the court.
The plaintiff paid the defendant, according to the agreement and the decree, the sum of $ 300 and $ 250 to her counsel. Certain other payments were made, but plaintiff defaulted during the years 1921 and 1922, and, acting under the stipulations in the contract, judgments were entered against the husband in Ward county on July 12, 1921 for $ 525.25, and on December 27, 1921, for $ 934.82. Executions were issued thereon and levies made on real property of the plaintiff.
On the 17th of January, 1922, the plaintiff being still in arrears under the decree, Mrs. Sinkler applied to the district court for an order requiring plaintiff to show cause why he should not be adjudged guilty of contempt for failure to pay according to the decree. This order was returnable on the 26th of January, 1922. On January 20, 1922, the plaintiff served notice on the defendant that on the return day for the order aforesaid in the contempt proceedings, he would apply to the court for an order modifying the judgment entered in the original divorce action, on the 23rd of March, 1917, and supported such application by his own affidavit and the files in the action. It is not necessary to set out in full the detailed statement of facts in the affidavit upon which the plaintiff asked the court to modify the original decree as to the payment of $ 225 monthly. In general, it is based upon the allegations that the plaintiff's earnings as a lawyer have decreased very materially; that his law business has not been lucrative and that he cannot earn an amount sufficient to pay according to the decree and to support himself and his present wife at the same time.
On the 26th of January, on the return day, the defendant replied to the plaintiff's affidavit, denying generally the allegations of inability made by the plaintiff and asserting that the original decree was based upon a contract fairly entered into and setting up other facts not necessary to detail here.
Upon the affidavit and moving papers aforesaid, the matter was heard on April 28, 1922, and the court made its order dismissing the contempt proceedings and modifying the original decree so as to release the plaintiff from the obligation to pay defendant $ 225 per month during her natural life and permitting and directing plaintiff to pay instead the gross sum of $ 6,000, in full as settlement of property rights between the parties. The court found that, because of adverse financial conditions, the plaintiff was unable to earn enough to make payments in accordance with the original decree. The gross sum of $ 6,000 ordered to be paid included the amount of the two judgments heretofore referred to.
On this order of the court judgment was duly entered on the 21st of June, 1922 and Mrs. Sinkler, in this appeal, challenges the correctness of the order and of the judgment.
Our statute, § 4405, Comp. Laws 1913, gives the court control over divorce decree, and the authority to modify judgments in divorce actions. The statute reads as follows:
Sec. 4405. Support. "When divorce is granted, the court shall make such equitable distribution of the property of the parties thereto as may seem just and proper and may compel either of such parties to provide for the maintenance of the children of the marriage, and make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects." See Rindlaub v. Rindlaub, 28 N.D. 168, 147 N.W. 725.
Section 4411, Comp. Laws 1913, provides that either husband or wife may enter into contracts with the other and with other persons respecting property to the same extent as if unmarried. After marriage, the wife has the same rights with respect to property, contracts and torts as before marriage. Section 4412, Comp. Laws 1913, gives husband and wife the power to contract with reference to maintenance during separation.
The right of husband and wife to contract with respect to the division of property in the event of a divorce has also been recognized by the courts. The contract entered into in this case would be enforceable in equity between the parties if not incorporated in the decree. Nelson v. Vassenden, 115 Minn. 1, 35 L.R.A. (N.S.) 1167, 131 N.W. 794. The rule is that agreements respecting property rights, the divorce proceedings be pending, are not void as in contravention of good morals or public policy unless their purpose or effect be in some way to facilitate divorce proceedings. Burgess v. Burgess, 17 S.D. 44, 95 N.W. 279; Ward v. Goodrich, 34 Colo. 369, 2 L.R.A. (N.S.) 201, 114 Am. St. Rep. 167, 82 P. 701. Such agreements, when reasonable, when fairly entered into, without fraud or misrepresentation, while they are carefully scrutinized by the courts, are, when confined to the adjustment of property rights, binding and will be enforced. Amspoker v. Amspoker, 99 Neb. 122, 155 N.W. 602; Phillips v. Phillips, 39 R.I. 92, 97 A. 593, 12 L.R.A. (N.S.) 848, note; Nelson v. Vassenden, supra.
In the Vassenden Case, Judge Simpson, speaking for the supreme court of Minnesota, says that it is desirable that the parties submit the contract to the court for approval because they are thereby relieved later from the necessity of proving that the...
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