Wallace v. Wallace, 43445
| Decision Date | 12 October 1971 |
| Docket Number | No. 43445,43445 |
| Citation | 490 P.2d 749 |
| Parties | George Cloyd WALLACE, Plaintiff in Error, v. Glendora May WALLACE, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Raymond Burger, Oklahoma City, for plaintiff in error.
Reynolds & Foreman, Robert F. Brandenburg, Jr., Norman, for defendant in error.
This appeal involves an effort made in the trial court by the defendant in error, a remarried divorce (whose surname is now 'Young'), to 'clarify' the amount her remarried former husband, the plaintiff in error must pay her each month out of the total sum of alimony awarded her by said court's previous decree divorcing the couple, in view of hereinafter related subsequent events. She and her former husband will be hereinafter referred to as 'plaintiff' and 'defendant', respectively, as they appeared in the trial court.
In the divorce decree rendered June 25, 1963, a property division was effected, which entitled plaintiff, among other things, to one-half of the proceeds of a nine-thousand-dollar promissory note held by defendant. The decree also awarded plaintiff custody of the couple's three minor children, and required defendant to pay $150.00 per month for the support of each child. The decree also awarded plaintiff alimony in the total sum of $41,650.00, to be paid in monthly installments of $350.00 each on the 15th day of each month thereafter until the entire sum was paid.
Upon defendant's subsequent delinquency in paying plaintiff her share of the above mentioned note's proceeds, as well as the monthly installments due on her alimony award, she had him cited for contempt, but, in September, 1964, before he was adjudged guilty, he obtained an order reducing his obligation for child support, and making other modifications in the decree not important here. About the same time, defendant apparently made sufficient payments The next month (November, 1964) plaintiff again had defendant cited for contempt, upon her application alleging, among other things in substance, that he still owed her a balance of $2,700.00 on her share of the note's proceeds, and that her alimony payments were in arrears approximately $2,625.00. When defendant thereafter appeared before the court and plead 'Not Guilty' to indirect contempt, he was released on bond and scheduled for a jury trial on the contempt charge, to be held December 10, 1964. While awaiting this trial, the parties negotiated a transaction, which was reduced to a writing entitled 'ALIMONY AGREEMENT'. This 'Agreement', which, on that date, was filed in the case, reads as follows:
of the note's proceeds, and of the alimony, that he was purged of the contempt for which he had been cited.
-vs-
GEORGE CLOYD WALLACE, Defendant.
'This agreement made and entered into this 10th day of December, 1964, between plaintiff and defendant herein, and upon approval of the Court.
'There having been filed in the District Court of Cleveland County, State of Oklahoma, by the plaintiff, a citation for contempt against the defendant, and the same being set for trial on December 10, 1964, and there having been an agreement reached between the parties concerning this matter, and with reference to the previous order of the Court dated June 25, 1963, it is therefore agreed by and between the parties, subject to the approval of the Court that:
'For and in consideration of the payment to plaintiff by defendant of the sum of $2,000.00, plaintiff waives any further right she may have under the decree of divorce dated June 25, 1963, with reference to the one-half interest of the proceeds of the $9,000.00 note, it being agreed that this is the remainder and residue of plaintiff's interest in said note.
'Plaintiff, in further consideration of the above payment, hereby agrees that all alimony due and payable under the decree of divorce dated June 25, 1963, be extended pursuant to this agreement and she hereby requests the Court to purge defendant of his contempt as a result of the nonpayment of any alimony payments to date.
'Plaintiff further agrees that the decree of divorce dated June 25, 1963, may be modified with respect to the parties in that beginning on the 1st day of January, 1965, defendant shall pay to the plaintiff, the sum of $38,050.00 which amount represents the unpaid balance due on the alimony judgment to be paid at the rate of $250.00 per month beginning on the 1st day of January, 1965, until paid. Except that in the event that the minor child, Darrell Wallace, now residing with plaintiff becomes emancipated or obtains majority, then and in that event, defendant will continue to pay plaintiff the amount of $150.00 per month, which amount will be payment on the alimony judgment.
'It is further understood by the parties that this agreement in no way effects the order of the Court with respect to child support.
'In support of this agreement, the Court heard the testimony of the parties and finds that the matters and things contained herein are as stated, and it appearing to be the intention of the parties to consummate this agreement approves the same.
Attorneys for the Defendant
/s/ LESTER A. REYNOLDS
Lester A. Reynolds, Attorney for the Plaintiff'
In accord with the terms of the above quoted instrument, defendant paid plaintiff the $2,000.00 she therein agreed to accept as the remainder due her on the promissory note; and defendant has continued to pay monthly installments of $250.00 each on the $38,050.00 therein agreed to represent the balance then remaining unpaid on the plaintiff's alimony award.
The proceedings, in which the order herein complained of was entered, began when, in September, 1968, plaintiff filed in the same divorce action a pleading entitled 'MOTION TO CLARIFY ORDER'. In said pleading, plaintiff recited facts concerning the above quoted Agreement, including its provision for the increase to $400.00 of the amount defendant was to pay on plaintiff's alimony award each month, beginning when the couple's youngest child, Darrell, became emancipated or reached majority; and she alleged the date of the latter would be February 20, 1970. In...
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Brother's Estate, Matter of
...21 So.2d 549 (1945); Jordan v. Jordan, 105 Colo. 171, 96 P.2d 13 (1939). The Oklahoma court repeated its Pugh holding in Wallace v. Wallace, 490 P.2d 749 (Okl.1971). The real issue in Wallace was not the same as the issue here or in Pugh, but the validity of the Pugh holding was essential t......
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Martin v. Martin, 44897
...P.2d 761, 763, 102 P.2d 545.' The above principles of waiver and estoppel by consent are the same ones this Court applied in Wallace v. Wallace, Okl., 490 P.2d 749, when it reversed the trial court and held where a divorced wife agreed with her former husband on changes in the alimony payme......
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Young v. Comm'r of Internal Revenue , Docket Nos. 3929-69
...Court did not express an opinion as to whether the lower court in fact exercised its jurisdiction to modify the decree. Wallace v. Wallace, 490 P.2d 749 (Okla. 1971). Upon remand, the District Court of Cleveland County, after hearing the parties' arguments, wrote the following memorandum op......