Wray v. Langston, 51705

• Decision Date: 05 March 1980
• Docket Number: No. 51705,51705
• Citation: 380 So.2d 1262
• Parties: Olyn Lee WRAY v. Hilda E. Nelson Wray LANGSTON.
• Court: Mississippi Supreme Court

Page 1262

380 So.2d 1262

Olyn Lee WRAY v. Hilda E. Nelson Wray LANGSTON.

No. 51705.

Supreme Court of Mississippi.

March 5, 1980.

James C. Waide, West Point, for appellant.

James C. Helveston, West Point, for appellee.

Before ROBERTSON, WALKER and LEE, JJ.

LEE, Justice, for the Court:

The Chancery Court of Clay County rendered a decree April 4, 1979, which modified a divorce decree dated February 20, 1975, and increased child support payments to two hundred dollars ($200.00) per month, ordered Olyn Lee Wray to pay unto Hilda E. Nelson Wray Langston seven hundred fifty dollars ($750.00) attorney's fees, and denied the petition of Wray to vacate that part of the divorce decree which required him to transfer his interest in homestead property to Langston. Wray has appealed from the judgment and assigns three (3) errors in the trial below.

I.

Did the lower court err in refusing to vacate that part of the divorce decree requiring Wray to transfer his interest in homestead property to Langston?

Appellee instituted a divorce action against appellant, charging habitual cruel and inhuman treatment, and, after a trial on the merits, the chancellor entered a decree February 20, 1975, divorcing them, granting custody of two (2) minor children of the parties to appellee, and requiring appellant to pay three hundred dollars ($300.00) per month child support. The decree also provided the following:

"Came the parties through their attorneys and announced to the Court that all matters of child support, child custody, and property rights have been settled, and the Court having considered said agreement finds that the agreement should be approved and ratified by the Court and made a part of this decree.

The Defendant, Olyn Lee Wray, is ordered to execute a quit claim deed to any right, title, and interest he may have in either the home or the furnishings therein, as agreed by the parties, with the Complainant assuming all outstanding liabilities against said home."

The decree was approved as to form by attorneys for the parties. No appeal was taken from that final decree.

Appellant now contends that he was required to divest himself of real property by the court, which had no authority to do so, and cites Bond v. Bond, 355 So.2d 672 (Miss.1978); Bridges v. Bridges, 330 So.2d 260 (Miss.1976); Hudson v. Hudson, 284 So.2d 299 (Miss.1973); and McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872 (1950).

The above cases correctly state the rule that a court is without authority to divest a spouse of his or her property. However, in the present case, the parties agreed in a property settlement that appellant deed his interest in the homestead unto appellee, and the decree followed that agreement in directing the appellant to convey such interest to appellee. The record reflects that, acting pursuant to the agreement and decree, appellant, without objection, executed a deed of conveyance to appellee.

Griffith, Mississippi Chancery Practice, Section 618, at 664 (2d ed. 1950), states:

"(A) consent possesses the attributes of a contract and, when duly authenticated and especially after being filed, it is binding on the consenting parties, if competent to contract, and cannot be set aside or reviewed, except on a clear showing that it was obtained by fraud or the substantial equivalent thereof, or was based on mutual mistake."

The above rule has been followed in Dibrell v. Carlisle and Humphries, 51 Miss. 785 (1875) and Hiatt v. Barker, 194 So.2d 495 (Miss.1967).

In Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158 (1955), this Court held that a consent decree can be set aside only when the following circumstances exist:

(1) (T)he facts constituting the fraud, accident, (or) mistake or surprise must have been the controlling factors in effectuation of the original decree, without which the decree would not have been made as it was made.

(2) The facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved.

(3) The facts must not have been known to the injured party at the time of the original decree.

(4) The ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.

We hold that the divorce decree of February 20, 1975, did not, of itself, divest title from appellant, but simply set out and followed the agreement of the parties, which was incorporated into the decree, and subsequently was performed by appellant. Also, there is no merit in the argument that the oral agreement violated the Statute of Frauds.

II.

Did the lower court err in increasing support for a child of the parties to two hundred dollars ($200.00) per month, in order to defray college expenses?

Appellant admits that Tammy Wray, 19-year-old daughter of the parties, meets the qualifications expressed in Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960), and that he is financially able to contribute to the support of the child and for college expenses. However, he contends that appellee has substantial income and assets, and that she is equally responsible for paying support and for the education of Tammy. He also argues that the court considered expenses in computing costs of attending college which were not allowable.

The chancellor found that appellant's income for the year 1978 was seventeen thousand five hundred thirty-five dollars ($17,535.00), that appellee's income was eleven thousand eight hundred sixty dollars fifty-three cents ($11,860.53), and that Tammy earned five hundred dollars ($500.00) during the summer. The...