Wallis v. Wallis ( 1959 )

McDonough, justice.

From a determination by the District Court that a post-divorce agreement between the parties concerning alimony and child support was still in effect, plaintiff appeals.

The parties were divorced in 1955. The decree awarded the plaintiff a divorce and $350 monthly for alimony and child support. After a few months defendant ceased making payments. About a year thereafter, when the defendant was $4,117.50 in arrears, the parties entered into an agreement the essential terms of which were these: Defendant was to pay only $100 per month as alimony and child support for three years, during which time he was also to pay the arrears of $4,117.50; if he complied with the above condition plaintiff would then agree to a reduction in the alimony and child support to $125 monthly. It expressly provided that if the defendant failed to comply with the above conditions, then the agreement was null and void, and the plaintiff was to retain her full right to $350 a month retroactively.

Upon petition of the parties the trial court approved the above agreement and accepted it to be filed, but did not make it a part of the decree.¹

Defendant made payments under the agreement from October, 1956, through February, 1958, but stopped making them in March, 1958. Plaintiff brought an order to show cause why defendant should not be held in contempt and for a total judgment of $9,417.50, which included all arrearages figured at $350 per month since the entry of the original decree.²

After a hearing upon evidence p of defendant’s inability to pay because of being out of employment the court found he was not in contempt because his failure to pay the $100 had not been wilful. This portion of- the order is supported by the evidence and is not vulnerable to attack. However, the trial judge further found that, because the defendant had not wilfully breached the terms of the agreement referred to above, the agreement was still in effect. The 'plaintiff attacks the latter ruling upon this appeal.

The power of the parties to make agreements changing the monetary terms of a divorce decree 'is generally upheld except where future child support is concerned,³ absent hardship, fraud; duress, concealment, undue influence, or mutual mistake.⁴ The cases cited in note. 3 discuss special problems arising from such agreements and the applicable rules of the respective jurisdictions. This power is always subject to the general equitable control the court may exercise .in the interest of the parties and particularly in the welfare of the children.⁵

We are unable to agree with the ■determination made -by the trial court in this' instance in regard to the agreement. It .contains no hardship clause, but rather, a specific recital that it will be void if the defendant fails to live up to the conditions specified. If it had not been a matter of agreement, but only a portion of the decree, the court might have excused performance because of the lack of wilfulness. However, such was not the case, and the alimony and support money having accrued, they become a judgment.⁶ The fact that the defendant did not wilfully breach the agreement is not grounds for denying the appellant the right to enforce its terms and to refuse to waive the accumulations under the decree.⁷

It is apparent that the trial judge was quite understandably inclined to be sympathetic to the defendant because of the plight he finds himself in. It seems likely that if the court had not erroneously thought the agreement could be. continued in force and effect, it would have granted defendant’s cross-petition to modify the decree by reducing the payments to correlate more realistically with the defendant’s ability to pay. In view of the correction of that error it would be in order for the court to re-examine the situation and make such order as it deems equitable and proper under all of the circumstances, including a correct view of the noneffectiveness of the agreement because of the defendant’s failure to comply therewith.

' That portion of the order of the court that the agreement relating to the reduction in payments of alimony and support money is in force and effect is reversed, and this case is remanded for such further proceedings as the trial court deems proper.

Costs to appellant.

WADE, J., concurs. CALLISTER, J., concurs in the result.

1 . Presumably, this procedure was followed in light of Marks v. Marks, 98 Utah 400, 100 P.2d 207.

2 . See Austad v. Austad, 2 Utah 2d 49, 269 P.2d 284, 48 A.L.R.2d 256, explaining Myers v. Myers, 62 Utah 90, 218 P. 123, 30 A.L.R. 74; see also Larsen v. Larsen, 9 Utah 2d 160, 340 P.2d 421, on some aspects of the finality of past due instalment payments under a divorce decree.

3 . Price v. Price, 4 Utah 2d 153, 289 P.2d 1044.

4 . See McKinney v. McKinney, 152 Kan. 372, 103 P.2d 793; Hill v. Hill, 106 Colo. 492, 107 P.2d 597; Schmelzel v. Schmelzel, 287 N.Y. 21, 38 N.E.2d 114; Goldman v. Goldman, 282 N.Y. 296, 26 N.E.2d 265; Apfelbaum v. Apfelbaum, 111 N.J.Eq. 529, 162 A. 543, 84 A.L.R. 298; Higgins v. Higgins, Sup., 119 N.Y.S.2d 103; Cavenaugh v. Cavenaugh, 106 Ill.App. 209.

5 . Anderson v. Anderson, 110 Utah 300, 172 P.2d 132; Price v. Price, 4 Utah 2d 153, 289 P.2d 1044; compare Larsen v. Larsen, 5 Utah 2d 224, 300 P.2d 596.

6 . Openshaw v. Openshaw, 105 Utah 574, 144 P.2d 528.

7 . Compare Cahill v. Cahill, 316 Ill.App. 324, 45 N.E.2d 69.