Tammen v. Tammen

• Citation: 289 Minn. 28,182 N.W.2d 840
• Decision Date: 18 December 1970
• Docket Number: No. 42397,42397
• Parties: Carol J. TAMMEN, Respondent, v. Cecil M. TAMMEN, Appellant,
• Court: Supreme Court of Minnesota (US)

Page 840

182 N.W.2d 840

289 Minn. 28

Carol J. TAMMEN, Respondent, v. Cecil M. TAMMEN, Appellant,

No. 42397.

Supreme Court of Minnesota.

Dec. 18, 1970.

Syllabus by the Court

1. The basic right of minor children to support by parents may not be affected by a stipulation of parties to a divorce proceeding entered into prior to order thereon.

Courts will not be bound by an agreement between parents affecting rights of minor children with respect to support but will be controlled by the welfare of the child as the paramount consideration.

2. Where the record shows that the divorced father's financial situation has improved and he has a substantial income from his profession as an architect, the trial court did not abuse its discretion in increasing support money for each of two minor children from $80 to $150 a month to compensate for increased living costs and expenses of school tuition.

Scallen, Farnes, Evidon & Maurer and R. Gordon Nesvig, Minneapolis, for appellant.

Barnett, Ratelle, Hennessy, Vander Vort & Stasel, Minneapolis, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, PETERSON, and ROSENGREN, JJ.

OPINION

MURPHY, Justice.

Appeal from an order of the district court granting a motion to amend the judgment and decree in a divorce action with relation to support money for minor children of the parties. It is contended that the court abused its discretion by altering a provision contained in a prior order entered in 1965 pursuant to a stipulation of the parties or was without power to do so.

The parties were divorced in 1961, at which time there were four minor children. Defendant, a registered architect, had a gross income of approximately $15,000 a year. Plaintiff was given custody of the children, and defendant was required to pay alimony of $280 a month and the sum of $80 a month for each of the children.

In 1965, defendant moved to terminate alimony payments. The merits of this proceeding were not litigated, and it was disposed of by an order made pursuant to a stipulation. The order provided that as each child reached his 18th birthday, the monthly alimony payable to plaintiff would be reduced $70. Thus, on May 1, 1973, when the youngest child reaches 18, plaintiff's right to alimony will be terminated. The support money, however, for the minor children, on the basis of $80 a month, was continued.

On November 7, 1969, a hearing was held on a motion by plaintiff requesting that the court amend the original decree to increase the amount required to be paid for child support. Plaintiff asked that the sum be fixed at $200 a month for each child until emancipation or age 21 or until such child became self-supporting. As a result of this motion, support money for each of the minor children was increased by order of the court from $80 a month to $150 a month. In the present posture of these proceedings, defendant, age 49, pays $70 monthly alimony and $150 a month for each of the two minor children, ages 15 and 20.

While there is considerable evidence in the record with reference to the circumstances of the parties and the earning capacity of the minor children, we are concerned here only with the reasonableness of the court's order requiring support money of $150 a month for each of the two minor children.

1. Defendant's contention that in effect the order fixing support money entered in 1965 is res judicata and cannot be altered is without merit. The fact that the order was predicated upon a stipulation does not deprive the court of authority to award suitable amounts for the support of minor children. The basic right of minor children to support by the parents may not be affected by any agreement between the parents or third persons. Courts will not be bound by an agreement between parents affecting the rights of minor children with respect to support, but will be controlled by the welfare of the child as the paramount consideration. Kiesow v. Kiesow, 270 Minn. 374, 133 N.W.2d 652; Mund v. Mund, 252 Minn. 442, 90 N.W.2d 309; Mark v. Mark, 248 Minn. 446, 80 N.W.2d 621. In Hellman v. Hellman, 250 Minn. 422, 426, 84 N.W.2d 367, 371, we said:

'Where the divorce decree has adopted a stipulation agreed upon by the parties, such stipulations are purely advisory to the court and do not limit its discretionary power to...