Phy v. Phy , 116 Or. 31 ( 1925 )

I am unable to concur in the majority opinion herein. I do not question the propriety of modifying a decree awarding alimony where it is for maintenance only, and where the conditions have changed since the adjudication, and the decree is not based upon any consideration of property rights of the wife, as in Brandt v. Brandt, 40 Or. 477, 486 (67 P. 508, 510), but as said by Mr. Justice WOLVERTON, as found on the last-named page:

"And where the allowance proceeds from a consideration of the restitution of property brought to the husband by reason of the marriage, or the partition of property accumulations, it should be regarded as a final adjudication of the matter: Cole v.Cole, 142 Ill. 19 (31 N.E. 109, 34 Am. St. Rep. 56, 19 L.R.A. 811)."

On October 16, 1922, the court granted the defendant, Winnifred W. Phy, a decree of absolute divorce against the plaintiff, W.T. Phy. In regard to the settlement of property rights and money matters, the court found and decreed partly as follows:

"And it further appearing to the court that the property rights of the parties herein were settled as shown by the record herein * * ORDER, ADJUDGE, AND DECREE that the plaintiff, W.T. Phy, within a reasonable time, after demand, crate and deliver to the defendant, f.o.b. cars at Hot Lake, Oregon, said Chickering baby grand piano, and that plaintiff pay to the defendant $100 in cash, on or before the 5th day of November, 1922, and $100 on or before the fifth day of each and every month thereafter for a period of not to exceed sixty-four (64) months."

The record shows the parties had been married about 12 years. On April 12, 1924, the plaintiff filed a motion to modify the decree and discontinue the alimony for the reason that the defendant had remarried, which is supported by affidavit.

The court made findings of fact and denied the motion to modify the decree. In the findings of fact, upon which the decree denying the motion to modify was based, the court sets out the stipulation of the parties upon which the original decree in regard to the settlement of property rights, money matters and alimony was based, which agreement was in substance embodied in the original decree. From the stipulation it appears that the parties had theretofore separated and were living apart. The stipulation recites, among other things, the following:

"WHEREAS, the parties hereto are living apart and desire to make a settlement of all matters of property and alimony between them and by this agreement do hereby make such settlement of said property without prejudice to the rights of either party so far as the divorce or marriage relations are concerned, and said parties specifically hereby state that this agreement shall not be taken as an agreement that either party hereto shall or shall not secure a divorce, but this agreement is to be taken only by the parties hereto and by the court as a settlement of property rights and alimony only.

"NOW, THEREFORE, in consideration of the premises and in consideration of the fact that the parties hereto are living apart and will continue to live apart, it is hereby agreed by and between the parties hereto that the party of the first part will, on demand, after the execution of this agreement, assign and transfer, * *" (Here follows the agreement substantially as set forth in the decree.)

The agreement concludes thus:

"It is further agreed by and between the parties hereto that in case any divorce is granted to either of the parties at any time in any suit, that this agreement is a property settlement and alimony, shall be taken as a full and complete settlement of all property interests and alimony between the parties and neither party hereto shall be compelled to pay, nor either party hereto can recover any more property or alimony than is as herein set out, and such property settlement and agreement of alimony shall be in full for allproperty rights, costs, attorney's fees, and alimony in any suitwhatsoever, whether now pending or hereafter in any placebegun." (Italics ours.)

The plaintiff appealed from the decree.

Section 514, Or. L., provides as follows:

"Power of Court to Modify Decree. At any time after a decree is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the suit."

In the note to that section we read:

"A modification of the alimony clause of a divorce can be made only by a motion in the original suit, as under this section, the court retains jurisdiction for that purpose: Corder v.Speake, 37 Or. 108, (51 P. 647)."

As we understand the matter, the question for determination in this suit is whether or not a decree for alimony based upon an agreement regularly made and sanctioned by the court settling the property rights of the parties, where "such property settlement and agreement of alimony shall be in full for all property rights, etc.," can be modified by a subsequent decree without impairing the obligations assumed by the contract of the parties.

The trial court, as a reason for denying the motion to modify, stated:

"If the stipulation was a settlement of property rights, then the court has no power to modify the decree founded upon the stipulation. If, however, the allowance to the defendant was simply for support, the court may in its discretion relieve the plaintiff from the payment of the alimony. Henderson v. Henderson, 37 Or. 141 (60 P. 597, 61 P. 136, 82 Am. St. Rep. 741, 48 L.R.A. 766); Brandt v.Brandt, 40 Or. 477 (67 P. 508); Cohen v. Cohen, 150 Cal. 99 (88 P. 267, 11 Ann. Cas. 520); Hogerty v. Hogerty,188 Cal. 625 (206 P. 79). It seems to me that the stipulation is as it purports to be, — a settlement of the property rights of the parties, and the provision for the payment of alimony was not an allowance simply for the support of the defendant. * * The fact that the sum of $6,500 was to be paid in installments of $100 a month does not affect the matter: Lally v. Lally, 152 Wis. 56 (138 N.W. 651). In the case of Henderson v. Henderson, supra, the decree unsuccessfully attempted to be modified provided that the defendant was to pay the sum of $150 a month during her natural life. Furthermore in the case of Marregang v.Marregang, 31 S.D. 459 (139 N.W. 341), it is held that the court in decreeing alimony in gross sums takes into consideration the probable duration of the life of each of the parties to the marriage contract, the possibilities of remarriage and sickness, and all other conditions, and that an allowance in gross is resadjudicata.

"It seems to me for the court to hold that the payment of $6,500 in installments of $100 a month was not one of the agreements entered into embodied in the settlement of the property rights of the parties, would be for the court to do violence to the stipulation, which the parties have entered into."

The same judge who rendered the original decree passed on the motion to modify and had the record of the case before him. The testimony taken upon the original hearing is not contained in the record and while the trial court had the benefit of such a testimony, this court is in the dark as to the same. The discretion of the trial court enters somewhat into the matter of determination of the question involved: See 44 L.R.A. (N.S.), note 1; Keezer on Marriage and Divorce, § 277, p. 151. A multitude of cases recognize this rule in regard to judicial discretion. At least the findings of the trial court should be given great weight.

From the affidavits and meager matters contained in the record it seems that the plaintiff, Dr. W.T. Phy, was a skillful physician and a man of large affairs, that there was nothing inequitable in the allowance of the alimony. There was no dispute in regard to the fact that the defendant remarried. This, of itself, as it is well established, is not a compelling cause for the modification of the decree. While if the decree is one that may be modified, it is a circumstance strongly in favor of such modification.

The general rule of law in relation to the question is indicated by the following authorities, and we especially call attention to the two able opinions enunciated by Mr. Justice WOLVERTON, herein referred to.

Henderson v. Henderson, 37 Or. 141, 145 (60 P. 597, 61 P. 136, 82 Am. St. Rep. 741, 148 L.R.A. 766), which is a very thoroughly considered case, was an application by the former husband for a modification of a decree of divorce rendered against him in favor of his wife. On February 4, 1894, the plaintiff was granted a divorce from the defendant, and in the decree therefor the defendant inter alia was required to support and educate the minor child and to pay to plaintiff, during the term of her natural life, the sum of $150 per month. On January 6, 1897, the defendant applied to have the last-named amount reduced to $75 per month on account of the change in his ability to pay, occurring since the decree of divorce was rendered. It appears that in January before the decree was rendered, the plaintiff and defendant entered into an agreement "settling and adjusting as between themselves their property rights." The defendant agreed to pay the amount of $150 per month to plaintiff through a bank, and plaintiff and defendant executed a trust deed to secure such payment. The agreement as to the alimony was embodied in the decree. From the decree in favor of the plaintiff wife, denying the modification as to alimony, the defendant appealed.

Mr. Justice WOLVERTON, after stating the facts, said:

"We are now to determine whether the facts set up by the answer to the defendant's petition constitute a defense to a modification of the decree in so far as it provides for the maintenance of the divorced wife. The facts relied upon are set forth by way of estoppel to the defendant insisting upon the modification, it being urged that a valid and binding agreement, based upon a sufficient consideration, was entered into by and between the parties, and that, the decree having been given and rendered in pursuance thereof, neither party can now be heard, without the consent of the other, to deny its validity or binding force and effect."

After a thorough discussion, and reference to several cases, the opinion concludes on page 152 (60 P. 600) as follows:

"We conclude, therefore, in consonance with these latter authorities, that the better rule is that, not withstanding the court has power and authority to modify its decree of divorce touching the awarding of a sum of money for the maintenance of either the husband or wife by the other subsequent to the entering of the decree, yet, nevertheless, they may agree in a proper case touching the amount of such sum and the manner of its payment, subject to the approval of the court as to its validity in good morals and as conformable to public policy, and in further consideration of the status and condition of the parties relating to the question of its fairness and equability of adjustment; but that, when suchan agreement has been approved by the solemn decree of the court,it becomes forever binding, to the same degree and with likeeffect as ordinary contracts between parties admittedly suijuris, and is not subject to revocation or modification, exceptby the consent of the parties thereto." (Italics ours.)

After a careful examination of the opinion in the Henderson case, we are led to believe that while a different rule prevails in some states, this court is committed to the doctrine announced in that case, which if applied to the case in hand would result in an affirmance of the decree of the trial court. The principles applied in the Henderson case, it is understood, is the same as that involved in the case in hand.

In Buck v. Buck, 60 Ill. 241, a decree was granted the wife, reciting, among other things, that, alimony having been settled between the parties upon the basis therein stated, it was accordingly decreed that the husband pay to the wife $12,000, and the further sum of $1,000, the value of certain furniture and silverware, and that he should maintain and educate an adopted child. The case went to the Supreme Court, and as a ground of reversal it was urged that the alimony allowed by the court was excessive and oppressive. But it was held that the husband, having consented to the provisions of the decree, should have no relief against his own voluntary agreement, the court saying:

"Whether the alimony is too high, or whether the court had any lawful authority to make provision for the maintenance of the adopted daughter without the consent of the plaintiff in error, it is not now necessary for us to express an opinion. It was competent for the plaintiff in error to consent to such decree, and, having done so, it must remain forever binding on him."

In 2 Schouler, Marriage Divorce (6 ed.), Section 1829, we read:

"The court cannot modify a decree entered by consent of all parties as to alimony, or based on contract and an allowance based on agreement may not be regarded as ``alimony' subject to change by the court, but it has been held that a statute authorizing the court to modify alimony will apply to a decree based on a property settlement." Citing: Van Sickle v.Harmeyer, 172 Ill. App. 218; Carr v. Carr, 185 Iowa, 1205, (171 N.W. 785); Hatfield v. Hatfield, 59 Okla. 132 (158 P. 942); Emerson v. Emerson, 120 Md. 584 (87 A. 1033);Wallace v. Wallace, 74 N.H. 256 (67 A. 580, 13 Ann. Cas. 293). See Soule v. Soule, 4 Cal. App. 97 (87 P. 205);Stanfield v. Stanfield, 22 Okla. 574 (98 P. 334); Lally v.Lally, 152 Wis. 56 (138 N.W. 651); Newbold v. Newbold,133 Md. 170 (104 A. 366).

In Keezer on Marriage and Divorce (2 ed.), Section 766, it is said:

"Alimony based on agreement. Where alimony is based on consent of all parties, or on a contract, the court has no power to modify the terms agreed upon for alimony." Citing: Mathews v. Mathews, 49 Cal. App. 497 (193 P. 586); Le Beau v. LeBeau, 80 N.H. 139 (114 A. 28). Contra: Emerson v. Emerson,120 Md. 584 (87 A. 1033) (as validity depends on the decree and not on the contract);Wallace v. Wallace, 74 N.H. 256 (67 A. 580, 13 Ann. Cas. 293).

In Roby v. Roby, 9 Idaho 371 (74 P. 957, 3 Ann. Cas. 50), the court said:

"The trial judge is in a better position than this court to know the amount of money necessary for the payment of costs and disbursements in the prosecution of an appeal, and the ability of the husband to meet such requirements. He knows all the facts in the case, and the situation and condition of the parties."

In Ex parte Lohmuller, 103 Tex. 474 (129 S.W. 834, 29 L.R.A. (N.S.) 303), it was said:

"In all ordinary cases the lower court is the one which should be called upon to act. To it parties can have ready access, and easily procure evidence, the production of which before an appellate court would often be both inconvenient and costly." Citing: Lane v. Lane, 26 App. D.C. 235 (6 Ann. Cas. 683). See, also, Haddock v. Haddock, 75 A.D. 565 (78 N.Y. Supp. 304).

In 19 C.J., page 272, we read:

"Allowance in gross. Statutes have been held not to apply to a decree awarding an allowance in gross, allotting specific property in fee, or making a final division or distribution ofthe husband's estate; but it has also been held that the court has power under such statutes to revise or modify a judgment for cash alimony whether payable in gross or in installments." Citing: Fenn v. Fenn, 23 Ohio C.C. (N.S.) 205; Cody v.Cody, 47 Utah 456 (154 P. 952); Zentzis v. Zentzis,163 Wis. 342 (158 N.W. 284); Smith v. Smith, 45 Ala. 264;Plaster v. Plaster, 47 Ill. 290; Martin v. Martin, 195 Ill. App.? 32; Plotke v. Plotke, 177 Ill. App. 344; Griswold v. Griswold, 111 Ill. App. 269; Barkman v. Barkman, 94 Ill. App. 440; Shaw v. Shaw, 59 Ill. App. 268; Guess v. Smith, 100 Miss. 457 (56 So. 166, Ann. Cas. 1914A, 300); Cody v. Cody, 47 Utah 456 (154 P. 952). (We italicize.)

In Wisconsin, as shown by the opinion of Blake v. Blake,68 Wis. 303 (32 N.W. 48), Id., 75 Wis. 339 (43 N.W. 144), it has been held, in effect, that under a statute authorizing the court to revise and alter a decree in respect to alimony or an allowance for the wife and children, that notwithstanding the parties may have entered into an agreement anterior to the decree, yet the court was authorized to subsequently modify the allowance.

In Henderson v. Henderson, supra, at page 149, of the report, Mr. Justice WOLVERTON, in discussing this question, after referring to and citing the Wisconsin case, proceeds to state thus:

"The strong tendency of adjudications elsewhere, however, establishes a contrary doctrine, — that when parties have agreed between themselves touching the allowance, and the same is reasonable, and such as ought to be granted under the circumstances and conditions attending the divorce proceedings, having in view the station and capabilities of the parties to respond, and not being contrary to the policy of the law, such an agreement, subject to the approval of the court, is binding upon the parties thereto."

In 1 R.C.L., Section 693, page 947, the rule is declared as follows:

"Notwithstanding the court has power and authority to modify its decree of divorce touching the allowance of a sum of money for the maintenance of the wife, yet, nevertheless, she and her husband may agree in a proper case touching the amount of such sum and the manner of its payment, subject to the approval of the court as to its validity in good morals and as conformable to public policy, and in further consideration of the status and condition of the parties relating to the question of its fairness and equability of adjustment. The authorities generally hold that when such an agreement has been approved by the solemn decree of the court, it becomes forever binding, to the same degree and with like effect as ordinary contracts between parties admittedlysui juris and is not subject to revocation or modification except by the consent of the parties thereto. But where the allowance is not entirely dependent on the agreement of the parties, the power of subsequent modification cannot be controlled by it in toto; for as the court is not, in the first instance, bound by such agreement concerning the amount of alimony to be allowed to the wife, a fortiori the agreement cannot hinder the court in altering that portion of its own decree of allowance which is not based upon the agreement; on the other hand, the court cannot alter or modify the decree, in so far as it is based on the contract of the parties, for such a modification of the decree would be no less than a modification of the contract itself. It has been held to the contrary, however, that a decree for alimony entered by consent is subject subsequently to be modified by the court, for the reason that the validity of such an allowance depends upon the judicial sanction of the court and not upon the agreement of the parties. In reaching this conclusion the courts have proceeded upon the ground that there could be no decree without the intervention of the court, and that the agreement was simply evidence of the questions involved, submitted for its consideration. It is rather hard to perceive, however, the line of distinction thus drawn between a decree for alimony by agreement of the parties, and any other judgment entered by consent, inasmuch as even the latter is based on the sanction of the court, express or implied." Pryor v. Pryor, 88 Ark. 303 (114 S.W. 700, 129 Am. St. Rep. 102);Julier v. Julier, 62 Ohio St. 90 (56 N.E. 661,

78 Am. St. Rep. 697); Henderson v. Henderson, 37 Or. 141 (60 P. 597, 61 P. 136, 82 Am. St. Rep. 741, 48 L.R.A. 766); Buckminster v.Buckminster, 38 Vt. 248 (88 Am. Dec. 652).

In 2 L.R.A. (N.S.) 241, paragraph IV, we read:

"Alimony may be agreed upon by the parties through a trustee, and also after or during the pending of an action for divorce; and in that case the agreement, or the decree when it embodies the terms of the agreement will be enforced, even if it should require continuance beyond the life of the husband."

This is followed by a wealth of authorities, among which is the case of Stratton v. Stratton, 77 Me. 373 (52 Am. Rep. 779), where during the pendency of cross-libels for divorce the parties entered into an agreement that, in case of divorce entered upon the husband's libel, two referees should determine what alimony the wife should receive, and how she should receive it; and that the report of the referees should be made a part of the decree, and binding on the parties. Their award and this agreement were extended on the record. The award was to the wife "during her natural life, an annuity * * to be paid quarterly." Upon a decree of divorce, the court ordered "that alimony according to the award * * be received and paid as therein provided." The defendant paid for a time, then ceased paying, and finally died.

In an action for debt it was held in effect that where the language of the decree especially states that the alimony is to continue after the death of the husband, the authorities hold that it will so continue. In the same note we find at page 242: "In Adams v. Storey, 135 Ill. 448 (26 N.E. 582, 25 Am. St. Rep. 392, 11 L.R.A. 790), the widow claimed dower in addition to the alimony granted in Storey v. Storey, supra, but the court held that the consent decree was intended to be in lieu of dower, and refused it." It is well established that a decree rendered by consent cannot be reviewed upon appeal. This for the reason that parties are bound by their valid contracts. It is difficult to discern any distinction in principle between a consent decree and a portion of a decree entered by consent of the parties, especially when such agreement relates to involved property interests.

It is plain from the stipulation that Mrs. Phy would not or did not release her claim to a portion of the property of Dr. Phy, including dower without the payment, or covenant to pay $6,500 in monthly installments. To modify the decree of the court is to change the solemn contract of the parties, which was approved by the court and embodied in the decree, and make a new contract for them.

The settlement of the property interests and the adjustment of the alimony under the terms of the agreement cannot be segregated. The release of the claims of Mrs. Phy to the property of Dr. Phy was made in consideration of his promise to pay and deliver both the property mentioned and the alimony. This is shown by the stipulation. The case stands the same as it would if in the settlement of their property rights the husband had agreed to convey and afterward had conveyed to the wife as her share in lieu of alimony certain real estate; and the wife had relinquished her right to all other property of the husband. The whole matter was settled by the agreement sanctioned by the original decree and is res adjudicata. The opinions in the case of Henderson v. Henderson and Brandt v. Brandt,supra, should not be overruled or changed.

It is understood that counsel did not direct the attention of the court to the matter above referred to and that the same was not passed upon in the former opinion of Mr. Justice BROWN.

A rehearing should be granted and the matter given further consideration.