Turner v. Turner

• Decision Date: 23 May 1969
• Citation: 441 S.W.2d 105
• Parties: Frank O. TURNER, Appellant, v. Martha H. TURNER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 105

441 S.W.2d 105

Frank O. TURNER, Appellant, v. Martha H. TURNER, Appellee.

Court of Appeals of Kentucky.

May 23, 1969.

Daniel W. Davies, Newport, for appellant.

Stanley C. Moebus, Fort Thomas, for appellee.

DAVIS, Commissioner.

Appellant seeks reversal of a judgment fixing his liability for child-support payments. Three arguments are presented by appellant: (1) No judgment should have been entered because there was no formal motion for judgment; (2) the court erred in denying appellant's motion to take proof after judgment had been entered; and (3) allowance payments for daughter Charmayne should have ceased as of August 1, 1965, since she became self-supporting at that time.

The proceedings from which this appeal arises are somewhat unusual. The parties were divorced by judgment of December 8, 1961. The judgment incorporated by reference a custody, alimony, and child maintenance agreement which the parties had reached. Custody of three children of the parties was granted the appellee wife. At the time of the judgment David was seventeen; Walter, sixteen; and Charmayne, fourteen. The agreement provided that the husband pay to the wife $150 per month as maintenance for the three children, specifying:

'* * * the sum of $50.00 per month is allocated for the support of each child. Said payment of $50.00 per month for each child is to continue until such child becomes self-supporting, attains the age of 21 years, or is emancipated.'

On February 19, 1965, the husband moved the court to reduce the maintenance payments on the ground that David and Walter 'are now adults.' The motion was scheduled for hearing on February 26, 1965.

The wife then moved the court on February 23, 1965, for a 'show-cause' rule against the husband based on his alleged delinquencies in maintenance payments. This motion also was scheduled for hearing on February 26, 1965, and supported by the wife's affidavit detailing the husband's purported arrearage in payments of maintenance.

The record contains no reference to the outcome of the two-pronged hearing scheduled for February 26, 1965. Indeed, the next activity is reflected by a motion filed by the husband on January 4, 1966, seeking to be relieved of 'further payment' of maintenance on the ground that all of the children 'are now self-supporting and/or emancipated.' No affidavit in support of the motion was made.

The wife filed her response to that motion on January 17, 1966, detailing once more the husband's failure to pay the maintenance allowances fixed in the original judgment and denying that the children were self-supporting or emancipated.

Next, on June 23, 1967, a stipulation was filed whereby the parties agreed as to just what payments had been made respecting each child. For David, who attained age twenty-one on March 2, 1965, past-due payments which accrued prior to his twenty-first birthday were stipulated at $780. For Walter, whose twenty-first birthday occurred on April 15, 1966, payment of $250 was due. For Charmayne, whose twenty-first birthday was July 5, 1968, accrued payments due were stipulated as $700. The stipulation concluded:

'It is further stipulated that the figures supplied herein may be used by the Court in preparing its Order, as agreed upon by counsel at the hearing before said Court on January 24, 1967.'

On June 23, 1967, the court entered its order adverting to the stipulation, denying the husband's motion to modify the order for support, and sustaining the wife's motion for a rule against the husband to show cause for his failure to comply fully with the support orders.

Although the record does not show that a 'rule' issued, it does contain the husband's 'Response to Rule' which he filed July 24, 1967, and in which he set out that Charmayne had been regularly employed from August 1, 1965, to January 1, 1966, and had earned $1,495.21. He asserted his entitlement to her earnings 'if said daughter is considered a minor.'

On January 16, 1968, the court entered judgment in favor of the wife against the husband for recovery of an aggregate of $1,430, allotted as $780 for David's support, $250 for Walter's support, and $400 for Charmayne's support to and including February 1, 1966. The judgment further provided that the husband should continue to pay $50 per month from February 1, 1966, to and including July 5, 1968, Charmayne's twenty-first...