Stuart v. Stuart
| Decision Date | 27 July 1976 |
| Docket Number | No. 46851,46851 |
| Citation | 1976 OK 107,555 P.2d 611 |
| Parties | Beatrice Carr STUART, Appellee, v. Robert Terry STUART, Jr., Appellant. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Oklahoma County; Robert L. Berry, judge.
Defendant's Application to Terminate Alimony Support Payments, by reason of Plaintiff's remarriage and failure within ninety days thereafter to make application to the Court for a determination that support was still needed, as directed by 12 O.S.1971 § 1289(b), was overruled by an order of the District Court in Oklahoma County. From such order, Defendant appeals. AFFIRMED.
Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, by V. P. Crowe, Clyde A. Muchmore, Jim K. Goodman, Oklahoma City, for appellee.
Tomerlin & High, by Jack High and Granville Tomerlin, Oklahoma City, for appellant.
Appellant, Robert Terry Stuart, Jr., filed an application to terminate alimony payments on the ground that the Appellee, Beatrice Carr Stuart, had remarried and that Appellee had not made application to the court within ninety days thereafter for a determination that support was still needed and that circumstances had not rendered payment of the same inequitable. The trial court overruled the application of the Appellant to terminate support payments by reason of Appellee's remarriage on the ground that the decree of divorce was a consent judgment which could not be modified without the agreement of both parties. The trial court further found that Appellant's continued payment of alimony installments for a period of 39 months after he knew of Appellee's remarriage estopped Appellant from asserting that the decree should now be modified, or that he should be relieved from making such payments. Appellant appealed said ruling.
The basic question for determination is whether the provisions of Title 12 O.S.1971 § 1289(b) are mandatory as to termination of support alimony payments where the trial court did not include in the divorce decree the statutory language regarding termination of support payments upon Appellee's death or remarriage and the agreement upon which the divorce property settlement is based did not contemplate or provide for termination of payments upon Appellee's death or remarriage.
Title 12 O.S.1971 § 1289(b) provides in pertinent part:
'(b) In any divorce decree entered after December 31, 1967, which provides for periodic alimony payments, the Court, at the time of entering the original decree, only, may designate all or a portion of each such payment as support, and all or a portion of such payment as a payment pertaining to a division of property.
The pertinent provisions of the Divorce Decree entered by the trial judge are as follows:
'IT IS FURTHER ORDERED that the plaintiff is entitled to be paid Alimony, maintenance and support in the total amount of Four Hundred Eighty Thousand Dollars ($480,000.00), payment to be at the rate of One Thousand Dollars ($1,000.00) on the 1st day of January, 1969, One Thousand Dollars on the 15th day of January, 1969, and a like amount on the 1st and 15th of each calendar month for a total period of twenty years; and it is further ordered that the alimony maintenance and support payments shall not become a judgment such as would constitute a lien against any of the property of the defendant until and unless the defendant becomes delinquent in one or more payments; and it is further ordered that this judgment not be placed upon the judgment docket until and unless the defendant should become delinquent in the payments thereafter.
'IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that the written Property Settlement Agreement dated the 4th day of November, 1968, whereby the parties have settled all their property rights, is fair, just, and equitable and the same is hereby ordered approved and incorporated herein by reference, granting the parties the right to withdraw the same from the Court files after due filing thereof is noted upon the appearance docket.' (Emphasis supplied)
The applicable portions of the Property Settlement Agreement provide:
'THIS AGREEMENT constitutes a complete and full settlement of property settlement, alimony, maintenance, and support, and property division of the parties.'
The Appellant contends that the Court erred: (1) in finding that the divorce decree was a consent judgment or decree, and (2) in finding that the Appellant is estopped from asserting or claiming that the decree fixing said alimony payments should be modified, or that he should be relieved from making such payments.
Appellee argues the divorce decree herein cannot be modified except with consent of both parties, as it is consent decree entered upon and pursuant to a written property settlement agreement between the parties and was not a decree entered by the Court of its own determination pursuant to 12 O.S. § 1289(b).
In support of her contention she cites Clement v. Ferguson, 287 P.2d 207 (Okl.1955), which held that whether a judgment is one obtained by consent of the parties must appear from the face of the record.
Appellant contends that the record evidence gives little, if any, support to Appellee's claim that the decree was a consent decree. On the other hand, Appellee takes the position that the evidence in the record of this case, including the Decree of Divorce, the Property Settlement Agreement, the pleadings and the transcript of the hearing, is sufficient to support the trial court's finding that the decree was a consent decree and, thus, cannot be modified.
47 Am.Jur.2d, Judgments, § 1084, Form, extent, and content, states:
'As a general rule, a judgment to the rendition of which the parties have agreed Should show on its face that it was entered by consent, but such a showing is not indispensable, and The fact may be established by other evidence.' (Emphasis supplied)
The trial court's finding that the divorce decree was a consent judgment or decree is amply supported by the evidence in the record. The Decree of Divorce recited that both parties were present in open court and represented by counsel and that the court questioned both parties concerning the Property Settlement Agreement and approved and incorporated the same in the Decree of Divorce. The decree was signed by both parties and their respective counsel. No exceptions were taken by either party at the time the decree was entered.
It is important to note that no evidence indicates the property of the parties herein was ever enumerated to the trial court. On the contrary, the record shows that the Divorce Decree entered by the trial judge incorporates by reference the over-all division of property contained in the Property Settlement Agreement, and the decree is identical thereto.
The Court in Stanfield v. Stanfield, 22 Okl. 574, 98 P. 334 (1908), 61 A.L.R.3d 561, held that where alimony is adjudged to the wife in accordance with an agreement of the parties, duly entered into and made a part of the decree, the same, unaffected by fraud or mistake, is not subject to modification after the term at which the original decree was made.
If an agreement between the parties on the matter of support and maintenance is intended as final and binding, leaving nothing for the determination of the court on the question of the amount of the allowance, a decree in accordance therewith is not subject to modification without the consent of both parties thereto. See Dickey v. Dickey, 154 Md. 675, 141 A. 387 (1928); Emerson v. Emerson, 120 Md. 584, 87 A. 1033 (1913); Allcorn v. Allcorn, Mo.App., 241 S.W.2d 806 (1951); Tracy v. Tracy, Mo.App., 205 S.W.2d 947 (1947); and cases cited at 27A C.J.S. Divorce § 238, Note 80.25, et seq.
In our opinion the trial court correctly construed the nature of the decree here involved. We find the above reasoning compelling, and conclude that the record evidence is sufficient to support a finding that the Divorce Decree was a consent decree which cannot be modified.
We must now examine the Agreement to determine the intent of the parties with respect to the termination of alimony payments. We find no indication that the parties intended that it terminate on death or remarriage of the wife. It is significant that there is no language of terminability of the alimony payments in either the Property Settlement Agreement or in the Divorce Decree. If the parties had intended the payments to be terminable on death or remarriage of the Appellee, language to that effect would have been included in either the Agreement or Decree.
We also find the following factors to be persuasive in determining that the intent of the original agreement was that it not terminate on death or remarriage: (1) The Appellant husband testified that...
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