Kephart v. Kephart ( 1952 )

WILBUR K. MILLER, Circuit Judge,

with whom Chief Judge STEPHENS and Circuit Judges CLARK, PRETTYMAN and PROCTOR concur:

In this case the United States District Court for the District of Columbia denied a divorced wife’s motion that her former husband be held in contempt for failing to pay alimony which the court had theretofore decreed to her; and refused to award her a “money judgment” against him for installments of alimony which had become due and were unpaid, despite the fact that the original decree under which the installments accrued had never been modified or set aside.

The wife’s appeal from the District Court’s action presents the following questions which are important in this jurisdiction:

1. May the trial court in its discretion refuse to punish for contempt one who disobeys its order to pay alimony; if so, was the discretion properly exercised, or abused, in this case?

2. Is a decree directing future payment of alimony in itself a “money judgment,” either originally or with respect to each installment as it becomes due; or is there no enforceable judgment for money in the wife’s favor until, after the accrual of installments, an additional decree has been entered awarding judgment thereon, pursuant to her motion therefor accompanied by a showing of the amount which has become due and which has not been paid?

3. Having awarded alimony to be paid periodically, has the District Court the power to modify or remit installments thereof which have become due and payable?

Before discussing these questions, we shall relate the history of the case. Some fifteen years ago the District Court granted a divorce to Irma N. Kephart and ordered the husband to pay $75 per month for the support of the wife and two infant daughters. That allowance of alimony has never been modified or revoked.

Four days after the divorce was granted in 1936, the appellee-husband remarried and established a new home in Maryland. In 1937 he was held in contempt here for failing to pay alimony but purged himself by paying the amount then due; subsequently he paid occasional small amounts until March 22, 1940, after which date he paid nothing although, as we have seen, the award of alimony had not been modified or set aside.

After vainly trying for several years to get the assistance of counsel, Mrs. Kephart finally found an attorney who instituted suit for her in the Circuit Court for Prince Georges County, Maryland, the county of the appellee’s residence, to recover installments of alimony which had accrued, under the decree of the District Court, after March 22, 1940. Kephart demurred to the complaint on the theory that the 1936 divorce decree of the District Court which awarded alimony was lacking in finality and therefore could not be enforced in the Maryland court under the full faith and credit clause. In support of the theory he cited our opinion in Franklin v. Franklin, 1948, 83 U.S.App.D.C. 385, 171 F.2d 12, where we held for the first time that the trial court has authority to set aside matured installments of alimony. Without a ruling on the demurrer, the case has “gone to the files” in Prince Georges County and has not been calendared by either party

In 1949 Mrs. Kephart entered in the original divorce action in this jurisdiction the motion which gave rise to this appeal. She asked for a contempt citation and for judgment for accumulated arrearages of alimony in the sum of $8,100.

The appellee responded to appellant’s motion as though it were an order to show cause. He filed in opposition his own affidavit that he removed to Prince Georges County, Maryland, and there remarried; that he and his second wife have two sons; that in 1942, when the younger of the two children of his first marriage attained her majority, he believed his former wife no longer needed his financial support so he ceased making alimony payments to her. He swore that from such cessation until early in 1948 he heard nothing from appellant and that she made no demands upon him; but that in May, 1948, he was served with process in the suit in the Circuit Court of Prince Georges County for a money judgment based upon his failure to pay alimony. He averred under oath that he was currently earning approximately $5,000 per year and had “two pieces of investment property” on which he was making payments.

Thus the appellee-husband asserted laches as a defense, contending that the wife’s delay in seeking to collect the arrearages, coupled with changes in his own circumstances, constituted in equity a bar to relief. He also asked in effect that the court reconsider the allowance of alimony with respect to installments already matured because the two daughters of the first marriage had long since come of age, and because he had had for some time the new burden of supporting two minor children by the second marriage.

It should be remembered that in denying appellant’s motion, the District Court (a) declined to punish or even to cite appellee for contempt of court, and (b) refused to award to the appellant a “money judgment” for installments of alimony amounting to $8,100 which had become due under the original decree and were admittedly unpaid.

I

We shall first consider whether the District Court has the discretion to refuse to cite or punish for contempt one who is delinquent in alimony payments; and, if so, whether the court was correct in its refusal here, under the defenses asserted by Kephart and in the circumstances shown.

Under subsections 410 and 41L of Title 16 of the District of Columbia Code (1940), when a divorce is granted to. the wife, the court has authority to decree permanent alimony and to enforce obedience to its order in regard thereto by “imprisonment for disobedience.” This authority to punish for contempt is not required by the statute to be invariably exercised. When a proper defensive showing is made by a delinquent defendant, such as unavoidable casualty, the court may refuse to punish him. But such refusal does not release the delinquent from civil liability to pay the amounts which have become due. Caffrey v. Caffrey, 1925, 55 App.D.C. 285, 4 F.2d 952.

Did the District Court act within its discretion in refusing to punish Kephart for contempt? Not under his plea of laches, for two reasons which follow:

1. A wife’s delay in seeking to enforce payment of alimony does not destroy or affect the husband’s obligation to obey the court’s order. That obligation does not depend upon the payee’s diligence in trying to collect. Contempt is shown by an inexcusable failure to .pay what the court ordered; it is not limited to a failure to pay sums which the wife promptly demands. ■

2. The delay here did not amount to laches, as it was sufficiently explained and excused by the wife’s illness, poverty and difficulty in obtaining counsel, coupled with the husband’s non-residence.

Was the court’s refusal to hold Kephart in contempt jusified by the conditions and circumstances shown by his defensive affidavit? We think not. He made no showing such as that in the Caffrey case. He relied upon the fact that his -first set of children had become of age, and the fact that he had acquired a second set which he must support. Neither reliance was sufficient to save him from contempt.

As to the first, we have held that an allowance to a wife, under § 16-411 of the District Code, of “permanent alimony sufficient for her support and that of any minor children whom the court may assign to her care,” is to be treated as alimony payable to the wife and is not contingent on the minority of the children. Lockwood v. Lockwood, 1947, 82 U.S.App.D.C. 105, 160 F.2d 923; Miller v. Miller, 1941, 74 App.D.C. 216, 122 F.2d 209. As to the second reliance, Kephart erred in thinking his voluntary assumption of new obligations by marrying a second time excused him from the primary obligation imposed by the court’s award of alimony. Kelly v. Kelly, 1943, 78 U.S.App.D.C. 97, 137 F.2d 254.

Kephart could have applied to the court for a modification or remission of the award of alimony, due to changed conditions or circumstances, but until such an application had been made and granted, he had to. obey thfc court’s order. He could not take the law in his own hands, decide for himself that he need no longer obey, and then advance .his own decision as justification for his disobedience. The District Court erred in refusing to exercise its discretion to punish him for contempt upon the showing he made.

We think, however, that upon remand Kephart should be cited for contempt and a hearing should be had as to the sufficiency of any defense which he may present. He may show grounds other than those presented in his affidavit heretofore filed which would justify the court in exercising its discretion to refrain from punishing him. We hold no more than that the defensive affidavit which Kephart filed was not sufficient to justify the court in refusing to penalize him for his disobedience.

We think it proper to add that the procedure in the District Court on appellant’s motion was incorrect. As we have said, Kephart treated the motion that he be held in contempt as though it were a citation for contempt and filed his affidavit in defense. The District Court also treated the motion as though it were a citation and, after considering the defensive affidavit, denied the motion. This was improper. If, when the motion to hold the appellee in contempt was filed, it was supported by the appellant’s affidavit showing arrearages in the payment of alimony, then, after notice of the motion had been given to the appellee, a hearing should have been had, either in open court or on affidavits and counter-affidavits, and the court should have determined whether there was delinquency and, if so, whether the appellee had shown an excuse for non-performance sufficient to cause the court in the exercise of a sound discretion to refrain from punishing him. This procedure was not followed in the present case but was short-circuited. That is to say, both Kephart and the court seem to have considered the motion as tantamount to a citation, which it was not; and the court’s order denying the motion amounted to a refusal even to cite Kephart. In the circumstances, this was improper.

II

We next consider whether the District Court was correct in denying Mrs. Kephart’s motion for a “money judgment” covering the arrearages in alimony. This brings us to the second of the legal questions stated in the beginning of this opinion: is a decree directing future payment of alimony in itself a judgment for money, or must it be supplemented by a new judgment entered for installments as they mature ?

For reasons which will.appear later, we hold that an award of alimony is a judgment for money, on which execution may issue. It is perhaps convenient, and certainly not improper, for the court to enter a new judgment establishing of record the accrued installments which are unpaid, when the wife draws the facts to the court’s attention. But that procedure is not essential. Installments which have become due are easily calculated from the terms of the original decree and a look at the calendar. The wife’s application for a writ of execution accompanied by her affidavit as to non-payment should move the issuance of the writ; if an issue is raised concerning the amount due, the court can determine it.

We are told that it has long been the custom here to proceed as Mrs. Kephart did in asking for a “money judgment.” As we have seen, it is not improper, although not essential. Even though Mrs. Kephart already had a judgment for $8,100, upon which she was entitled to execution, the court’s denial of her motion indicates either that the money had been paid, or that the court asserted and exercised the authority to remit the accrued installments. There is no pretense of payment, so the court’s action was purported remission. It was effective as such, because it is certain that the denial of her motion made it impossible for her to obtain a writ of execution.

Ill

So, the last of the three legal questions initially stated must now be answered. • Having awarded alimony to be paid periodically, has the District Court the poweT to modify or remit installments thereof which have become due and payable? If that power exists, it must be found in this language of § 16-413 of the D.C.Code: “After a decree of divorce in any case granting alimony and providing for the care and custody of children, the case shall still be considered open for any future orders in those respects.”

From 1916 until 1948 this court con- ■ sistently and unqualifiedly held that the District Court cannot modify or vacate installments of alimony which have become due. We shall quote extensively from our decisions during that period of more than thirty years so as to make apparent the reasoning upon which the uniform holding of those cases was based.

In Lynham v. Hufty, 1916, 44 App.D.C. 589, 599, we said, “ * * * The decree * * * is in the nature of an adjudicated judgment for accrued alimony * * * [and] was beyond the power of the court in its discretion to modify or vacate it.”

Caffrey v. Caffrey, 1925, 55 App.D.C. 285, 4 F.2d 952, was a case in which the trial court remitted certain alimony that had accrued under a prior decree. On appeal this court noted that what is now numbered § 16-411 of the D.C.Code expressly confers authority upon the trial court to decree a wife permanent alimony for her support and that of any minor children, upon the granting of a divorce to her; and that the Code section which is now numbered § 16-413 provides that, after a decree of divorce and an award of alimony, “the case shall still be considered open for any future orders in those respects.” The Caffrey opinion then said, “The question, therefore, is whether this reservation is prospective or retroactive.” It answered the question by holding that the reservation of jurisdiction in such cases is prospective only, and in doing so said in 44 App.D.C. at pages 285 and 286, 4 F.2d at page 952:

“We think this question is determined by our decision in Phillips v. Kepler, 47 App.D. C. 384, 387. In that case a divorce had been granted a wife by a Nebraska court of competent jurisdiction, the decree to be in force only ‘until the further order’ of the court. In this court it was contended that the decree as to past installments was not final, but we said: ‘The contention against the finality of the decree is based upon the provision which says that the requirement touching the alimony is to endure only “until the further order” of the court. But this does not disprove its finality as to installments past due. The decree may no doubt be altered by the court as to future payments, but there is no suggestion in it that, as to the installments which have matured, it is not final. In the Sistare case [Sistare v. Sistare, 218 U.S. 1], pages 13, 17 [30 S.Ct. 682, 54 L.Ed. 905], it was held that a decree like the one before us “operated to 'cause an indebtedness to arise in her (the wife’s) favor as each installment of alimony fell due, and that a power to modify, if exerted, would only operate prospectively.” If we may reason from the rule which obtains in statutory construction, a retroactive effect should not be given to the exercise of any power to recast a decree, unless the language defining the power leaves no choice. United States v. American Sugar Ref. Co., 202 U.S. 563, 26 S.Ct. 717, 50 L.Ed. 1149. No Nebraska statute nor decision has been brought to our attention which would authorize the court under the power reserved to so change the decree as to affect the installments past due. In view of this, and of the authorities cited, we hold that the modification of the decree, if made, would operate prospectively only and hence that the decree is final as to the installments of alimony in arrears.’

“The language of section 978 does not, in our view, clothe the court with the power exercised in this case. It does no more than authorize the court, as conditions change, to alter or modify its decree as to future payments, as was the effect of the ruling in Phillips v. Kepler.”

The case of Biscayne Trust Co. v. American Security & Trust Co., 1927, 57 App.D.C. 251, 20 F.2d 267, is to the same effect. In that case this court said, at page 253 of 57 App.D.C., at page 269 of 20 F.2d: “ * * * It is now too late for the court to set aside or reduce these sums [installments of alimony which had become due and were unpaid]. Phillips v. Kepler, 47 App.D.C. 384. In Caffrey v. Caffrey, 55 App.D.C. 285, 4 F.2d 952, it was held by this court that sections 976 and 978, D.C. Code, authorizing the court’s allowance of permanent alimony, and providing that, after a decree of divorce in any case granting alimony, the case ‘shall still be considered open for any further orders in those respects,’ operates only prospectively, and not retroactively, and the court is without authority to remit overdue alimony on showing that default arose from personal injuries resulting in incapacity to work.”

The same question arose in Lockwood v. Lockwood, 1947, 82 U.S.App.D.C. 105, 106, 160 F.2d 923, 924, in which we said: “ * * * It is well settled in this jurisdiction that the trial court is without power to effect a revision or remittance of past due alimony.”

In Cole v. Cole, 1947, 82 U.S.App.D.C. 155, 157-158, 161 F.2d 883, 885, this court said: “'It is of course true that when the instalments of alimony ordered to be paid pendente lite became due and payable under the terms of the order, they became fixed obligations due to the wife which she may be able, by some appropriate proceedings, to collect. The Supreme Court said in Sis-tare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 686, 54 L.Ed. 905, 28 L.R.A.,N.S., 1068, 20 Ann. Cas. 1061, that ‘where * * * alimony * * * is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due.’ ”

Thus it, was thoroughly established in this jurisdiction that the trial court cannot modify or rescind past due alimony, until the case of Franklin v. Franklin, supra [83 U.S.App.D.C. 385, 171 F.2d 12], was decided in 1948. There the District Court declined to hold the defaulting husband in contempt and declined to give to the wife “a money judgment for accumulated arrears,” on the grounds of laches and estoppel. This court affirmed, saying that suits for maintenance have been regarded in the District of Columbia as equitable rather than legal and that the trial court had exercised the discretion of a court of equity. The opinion said: “* * * Barber v. Barber, 21 How. 582, 16 L.Ed. 226, * * * and Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 * * * do not hold that a court which formerly issued an order for maintenance or the like must, regardless of equity and good conscience, enforce payment of accrued installments years later. Those cases and Phillips v. Kepler, 47 App.D.C. 384, hold only that other courts should enforce such payment if the court that issued the order would do so.”

The opinion added that the Caffr'ey, Biscayne Trust Co. and Lockwood cases “rest on a misunderstanding of the earlier cases and should be overruled.”

It is thus seen that in Franklin v. Franklin we departed from a long established interpretation of the pertinent Code provisions. The question is again presented by the case at bar, which was first heard by a panel of three judges in the usual manner. Because the matter is of such importance in this jurisdiction, and because some of us thought our decision in the Franklin case should be re-examined, the court sua sponte ordered a rehearing en banc.

Prior to the rehearing before the full court, we appointed John H. Burnett, Esq., and Jean M. Boardman, Esq., as amici curiae and requested them to discuss these questions: “!(a) did the trial court properly refuse to hold the husband m contempt and (b) did it have authority to remit the unpaid installments which had accrued to the wife under the divorce decree which stands without modification?” We also requested the amici curiae “to present briefs fully discussing the question of the merit of the decision in Franklin v. Franklin.”

Pursuant to our request, Messrs. Burnett and Boardman, working separately, filed exhaustive briefs and participated in the extensive oral argument of this cause. Both reached the conclusion and argued to us that the District Court has no authority to remit unpaid installments of alimony which have matured under a divorce decree which has not been modified, and that our decision in Franklin v. Franklin should be overruled. The court is indebted to the amici curiae for their able and helpful contributions.

Sistare v. Sistare, 1910, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, is the leading case on the subject. There the Supreme Court considered two previous cases, Barber v. Barber, 1858, 21 How. 582, 62 U.S. 582, 16 L.Ed. 226, and Lynde v. Lynde, 1901, 181 U. S. 183, 21 S.Ct. 555, 45 L.Ed. 810, and decided there is no conflict between them.

In the Sistare case the Supreme Court held, at pages 16 and 17 of 218 U.S. at page 686 of 30 S.Ct., that the effect of the Lynde and Barber cases was: “ * * * First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber case, ‘alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.’ Second, That this general rule, however, does not obtain where, by the law of the State in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due.”

• The Supreme Court' decided that under the New York statute the trial court in that state did not have power to modify or set aside an installment of alimony after it had become due. It noted, of course, that the New York statute authorizes a court to annul, modify or vary a decree of alimony at any time after final judgment, upon the application of either party after due notice to the other. But the Court was certain, 218 U.S. at page 22, 30 S.Ct. at page 688, “ * * * that nothing in this language [of the statute] expressly gives power to revoke or modify an installment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the existence of such power in the absence of clear language manifesting an intention to confer it.”

We regard this as the statement of a rule of construction of such statutes. Applying it, we find nothing in § 16-413 of the District Code which would justify us in holding that Congress intended the District Court to have any power to deal with matured installments of alimony except to enforce payment thereof. In fact, the ■language of our Code provision falls further short of justifying such a holding than did that of the New York Code which the Supreme Court found insufficient to warrant it.

The Supreme Court has never departed from the principles of the Sistare case, but has reaffirmed them. Griffin v. Griffin, 1946, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635; Yarborough v. Yarborough, 1933, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269.

We conclude, therefore, that the District Court here cannot modify or remit installments of alimony after they have become due by the terms of the original judgment which ordered their payment. When a decree awards alimony payable in future installments, the right to each installment becomes absolute and vested when it becomes due, provided no modification of the decree had been made prior to its maturity. Each installment which matures under a decree which has not been modified becomes a judgment debt similar to any other judgment for money. The original decree is final in character with respect to each matured installment and so cannot be challenged here and should not be challenged elsewhere. Execution may issue upon it. It is therefore unnecessary to seek in the original action a “money judgment,” although, upon a showing made to the court of the amount of the matured installments which remain unpaid, it is not improper for the District Court to note of record the amount which is then due under the original judgment.

To the extent that it is in conflict with these views, Franklin v. Franklin is overruled. The case is reversed and remanded for proceedings in conformity herewith.

Reversed and remanded.