Rogers v. Rogers

FAHY, Circuit Judge.

This appeal is from an order of the United States District Court for the District of Columbia entered April 24, 1952, denying, for lack of jurisdiction, appellant’s motion for increase in alimony.

Judgment for absolute divorce in favo.r of the wife, appellant, had -been granted March 8, 1951. Shortly prior thereto the parties had entered into an agreement which provided for a lump sum payment to appellant of $7,000.00, assumption by appellee husband of certain of appellant’s debts, disposition of household furniture, furnishings and jewelry, payment of appellant’s 'attorney’s fee, and waiver of dower, courtesy and any and all claims which each might have against the other. Appellant agreed also not to pledge ap-pellee’s ' credit. The agreement provided that it should be made part of the divorce decree in the event one was granted. Included also was a recital that the parties had been advised the court “has jurisdiction to provide for property settlements” and looks with favor “upon the parties themselves entering into an amicable settlement and adjustment of their respective property rights as well as claims by and against each other”, this recital concluding with the words that they were “desirous of entering into an agreement for that purpose and no other”. There was another provision, however, around which the controversy is primarily centered, as follows:

“The husband further agrees that in addition .to the aforesaid payment provided for in paragraph 1 hereof, he will pay to the wife, during her lifetime, the sum of Two Hundred Fifty ($250.00) Dollars per month as maintenance for her support, the first payment to commence as of March 1, 1951, and a like sum of Two Hundred Fifty ($250.00) Dollars on the : first day of .each and every month . thereafter, provided however that ■ should the wife remarry, in such event the payments provided for in this paragraph shall cease and terminate. And it is further provided that in the event the wife shall receive income in any amount from gainful employment, or receive an income from any source, the aforesaid monthly payments shall not be diminished or reduced thereby.” (Paragraph 2)

The court incorporated the agreement in the judgment for absolute divorce, in the following words:

“The Court, having examined a certain memorandum agreement dated February 27, 1951, wherein the parties have adjusted their respective property rights, the Court does hereby confirm and approve the aforesaid agreement as if set forth in externo herein, reserving jurisdiction to enforce compliance therewith and all matters pertaining thereto.”

In her affidavit attached to her motion for increase in alimony appellant stated she was unable to support and maintain herself out of the monthly allowance, and that subsequent to the divorce the appellee had been promoted, receiving approximately $3,600.00 more income per annum than at the time of the judgment. There is no evidence in the record as to the meaning of the agreement other. than the instrument itself.

The District Court, in holding it was without jurisdiction to modify the agreement, said there was no assumption that because 'the court had incorporated the agreement in its decree and had reserved jurisdiction “to enforce compliance therewith”, it intended to retain jurisdiction also to modify it.

If, however, the divorce judgment provided for alimony the District Court had jurisdiction to grant or deny the motion for an increase in its amount. § 16-413, D.C.Code 1951;¹ and where the court has such power the majority of jurisdictions, with which we agree, hold that it is unaffected by the fact that the award of alimony by the court is based on an agreement of the parties. Annotation, 1947, 166 A.L.R. 675, 676. See statement of the rule in Minnesota, set forth in Douglas v. Willcuts, 1935, 296 U.S. 1, 6-8, 56 S.Ct. 59, 80 L.Ed. 3. The question, therefore, as it here arises, may be stated as whether the agreement as incorporated in and made a part of the judgment provides for alimony. If it settles only property rights its inclusion in the judgment does not confer jurisdiction to modify it. Ettlinger v. Ettlinger, 1935, 3 Cal.2d 172, 44 P.2d 540; Rich v. Rich, 1941, 44 Cal. App.2d 526, 112 P.2d 780; Turner v. Ewald, 1942, 290 Ky. 833, 162 S.W.2d 181; Watt v. Watt, 1942, 69 Ohio App. 322, 43 N.E. 2d 633.

Reference to the agreement by the parties as a property settlement, McHan v. McHan, 1938, 59 Idaho 496, 84 P.2d 984; Prime v. Prime, 1943, 172 Or. 34, 139 P.2d 550, or alimony, or maintenance for support, Puckett v. Puckett, 1943, 21 Cal.2d 833, 136 P.2d 1, has not precluded the courts from construing payments to be what the evidence shows them to be. Even where the agreement provides for periodic payments for maintenance and support “in lieu of alimony” the court exercised jurisdiction to modify. Gloth v. Gloth, 1930, 154 Va. 511, 153 S.E. 879, 71 A.L.R. 700. As a result, neither the fact that the judgment in the present case says that the “parties have adjusted their respective property rights” nor a similar recital in the contract itself disposes of the case. Such descriptions point in one direction. Pointing in the other, the agreement recites that the husband is making monthly payments to the wife “as maintenance for her support,” which accords with the prevailing definition of alimony. 2 Nelson, Divorce and Annulment § 14.02 (2d ed. 1945). The fact that the payments are to cease on remarriage also lends support to the alimony theory. See, McHan v. McHan, supra, and cases cited; Turner v. Ewald, supra. Moreover, retention of jurisdiction over the provisions in the agreement “to enforce compliance therewith and all matters pertaining thereto” [emphasis supplied] might indicate that the court deemed paragraph 2 of the agreement, when included in the judgment, to be a provision for alimony which remained within the court’s jurisdiction.

The question whether the judgment should be construed as a grant of alimony depends in part on whether said paragraph 2 is separable from the other provisions.² We think it is. This being so, the remaining question, in the absence of more definite light from the provisions of the judgment other than the terms of the agreement, is-whether the parties intended paragraph 2 as the basis for an alimony award rather than as part only of a property settlement. Their intention is not apparent from the agreement itself, which is ambiguous in this regard. Evidence as to what they intended, if available, might be very helpful. If not available the court must of course decide without it; but we think the proper procedure now is to reverse and remand so as to afford the parties opportunity to present evidence which might reveal their intention. This procedure is supported by Lort v. Lort, 1952, 91 U.S.App.D.C. 118, 198 F.2d 598, 600, and Baker v. National Savings and Trust Co., 1950, 86 U.S.App.D.C. 161, 164, 181 F.2d 273, 276; and it is within our authority under 28 U.S.C. § 2106 (Supp. V, 1952).

Reversed and remanded for further proceedings not inconsistent with this opinion.

1 . “After a decree of divorce in any case granting alimony and providing for the care and custody of children, the case shall * * * be considered open for any future orders in those respects. (Mar. 3, 1901, 31 Stat. 1346, ch. 854, § 978.)”

2 . McHan v. McHan, supra; Banck v. Banck, 1944, 322 Ill.App. 369, 54 N.E.2d 577; Prime v. Prime, supra; and Gloth v. Gloth, supra.