Wardle v. Wardle, 3766
| Decision Date | 04 February 1970 |
| Docket Number | No. 3766,3766 |
| Citation | 464 P.2d 854 |
| Parties | Glenneta B. WARDLE, Appellant (Plaintiff below), v. Frank WARDLE, Jr., Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
James E. Birchby, of Burchby & Birchby, Sheridan, for appellant.
Harry F. Schwartz, Sheridan, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.
Glenneta B. Wardle, the divorced wife of Frank Wardle, Jr., sought by motion to have an assessment made by the district court for past child-support payments. Her motion was heard December 4, 1968.
The court refused to assess arrearages in child-support payments. Instead, it modified the divorce decree by cancelling past child-support payments. It also forgave the husband for future support payments until the month of August 1969, which was approximately eight months after the hearing. The order of the court provided there would be a further hearing when August 1969 arrived, upon the petition of either party; and according to the order, if it appears that the plaintiff (wife) has complied with the custody provisions of the divorce decree and further orders of the court, thereby purging herself of her contempt of court, the court will make and enter a further order in relation to future support payments. Although it was not a part of the court's order, the judge indicated orally that it may be necessary because of economic change in circumstances to increase the monthly allowance for child support, when there is a further hearing.
The divorce here involved was granted in 1965. In the decree, custody of the parties' two minor children was awarded to the mother. The father was ordered to pay $70 per month for their support. However, custody of the two children was awarded to the father during summer months, and he was relieved from making support payments while the children were with him.
Support payments were made through July 1959. The youngest child then reached six years of age and the father sought summer custody. Apparently the mother refused to permit such custody. She also declined to appear at a hearing to consider her contempt, and she was adjudged in contempt. Since prior to August 1, 1959, appellant has lived at Denver, Colorado. She remarried and is now the wife of James F. Hayes.
Appellant is a registered nurse and has been employed since the time of her divorce from Wardle. It seems entirely clear to us that appellant was unwilling to surrender the children to their father during summer months; and that she elected to forego any court action to enforce support payments as long as she was not compelled to surrender the children during the summer months.
On the other hand, it seems equally clear that Wardle was content to forego any action to compel surrender of the children during summer months as long as he was not being compelled to make support payments.
As far as the parties only are concerned, their mutual consent to and acquiescence in the stand-off arrangement about custody and support payments was equivalent to an implied agreement between them. Such an arrangement, by mutual acquiescence, was not, however, binding on the court; and it certainly could have no effect insofar as the welfare of the children is concerned. Moreover, there was nothing to prevent either party from discontinuing his or her consent to the stand-off arrangement at any time.
It is undisputed in the evidence that the children involved have been well provided for and supported since August 1959, by their mother and stepfather. It is not made to appear that their welfare requires the father to make back support payments to the mother. Testimony offered by the mother, however, indicates the stepfather has been ill and is not a well man; that he was unemployed at the time of the hearing; and that there is now a need for Wardle's assistance in supporting the children. Wardle has not attempted to deny the need for his assistance in supporting the children from and after the date of the December 4, 1968 hearing.
Section 20-66, W.S.1957, provides that, after a divorce decree with allowance for the wife or children, the court may from time to time revise and alter such decree respecting the amount of the allowance. Specific authorization is contained in the section for the court to:
'* * * make any decree respecting any of said matters which such court might have made in the original action.'
Counsel for both parties agree there are only five other states which have a statute similar to our § 20-66, with statutory authorization for the trial court to make any decree after divorce respecting allowances for the wife or children which it might have made in the original action.
The annotation in 6 A.L.R.2d 1277, 1293 (§ 8), sets for the that four of the five other states which have wording in their statutes similar to the language we have quoted from § 20-66 (Massachusetts, Michigan, Minnesota and Wisconsin) follow the rule that a trial court may cancel arrearages. The remaining state (Nebraska) considers the law well settled in that state that installments of alimony become vested as they accrue; that past-due installments become final judgments; and that courts have no authority to cancel or reduce the amount of accrued payments. See Clark v. Clark, 139 Neb. 446, 297 N.W. 661, 663.
We take the position that since August 1959 both Wardle and his former wife mutually consented and impliedly agreed that the wife would support the children and forego the benefit of child-support payments from Wardle and that he would forego the right to have custody of his children during summer months. Thus, the implied agreement of the parties, subsequent to the decree, prevented vested rights from accruing to either party (as far as the parties only are concerned). The case takes on a different complexion from one where only the husband is in default by failing to make monthly alimony or support payments.
Under equitable principles, it is within the prerogatives of a trial court to leave the parties where they are, as far as past payments are concerned-if the court considers it equitable and right to do so and if that can be done without jeopardizing the welfare of the children. If we were to apply appellant's theory of a 'vested' right, the courts would be powerless to apply equity.
In Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 960, 113 A.L.R. 889, Chief Justice Blume pointed out that our district courts administer all law-the common law, statutory law, and principles of equity. At 73 P.2d 961, he concluded the...
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