Austad v. Austad

269 P.2d 284, 2 Utah 2d 49, 48 A.L.R. 2d 256, 1954 Utah LEXIS 154

• Court: Utah Supreme Court
• Decided: April 13, 1954
• Docket: 8068
• Status: Published

Opinions

CROCKETT, Justice.

This appeal is from a judgment in proceedings supplemental to divorce. The trial court found the issues generally in favor of the defendant: Refused to find him in contempt; found that he had substantially complied with the divorce decree; set aside the requirement as to alimony as of the date of the defendant’s petition; awarded him custody of the remaining minor children; and entered judgment in favor of the plaintiff for $670, which was only a small portion of the amount she sought.

Plaintiff contends that the trial court erred in the following respects:

1. Giving judgment for only $670 unpaid alimony and support money.

2. Receiving evidence outside of court.

3. Granting custody of children to the defendant.

4. Failing to find defendant in contempt and in not refusing to accord him consideration before the court until he purged himself thereof.

5. Failing to award adequate attorney’s fees to her counsel.

As against the plaintiff’s attack, we view the evidence in the light most favorable to the defendant. The original decree of divorce was entered October 8, 1945; it awarded the plaintiff custody of the four children, ages one to ten years, and required defendant to pay $125. per month for the plaintiff and the children. Shortly thereafter the plaintiff moved to California, taking the children with her. About a year later she married a man by the name of Alexander, which fact she attempted to conceal from defendant, cautioning the children not to tell him. The marriage was short lived, being terminated by divorce in Nevada, July 28, 1948. Shortly after hearing of plaintiff’s marriage, defendant went to California to see her and the children. Upon being confronted with the fact of her remarriage she told defendant, “I don’t want a thing from you, you take care of the children.”

The plaintiff has permitted the children to be shuttled back and forth between her home and the defendant’s. They have lived with their father the larger portion of the time since the divorce, and actually most of the time since 1947. Plaintiff permitted this condition to continue, making no demands upon defendant for alimony until this proceeding was commenced in October, 1951, more than five years after her remarriage. In this proceeding, she sought return of the children who had been living with their father, and a judgment for several thousand dollars back alimony and support money. On direct examination she denied having received any payment except through the Weber County Clerk, but on cross-examination, confronted with checks bearing her endorsement, she was obliged to admit receiving a total of 33 such checks.

Contrasted to this, the defendant has maintained somewhat more than usual fatherly concern for his children. In addition to the fact that he had the children the major portion of the time, his evidence was that he made the payments up to the time of plaintiff’s remarriage; that after she told him she wanted nothing more for herself, he paid $25 per month for each child when one or more were with her, but admits that he paid no further alimony, and relying on her statement, did not petition to have the alimony terminated as it would have been his right to do. In view of the fact that he is awarded the continued custody and care of the remaining children, the oldest having married in 1950, it is plain that the imposition of a large judgment against him would substantially detract from his ability to provide for their current needs.

It is the plaintiff’s position that the $670. judgment in her favor is far too low no matter what method of calculation is used; that assuming the children were to receive $25 each, (the basis upon which defendant says he paid) and that plaintiff was entitled to only $25 of the $125 per month, she would be absolutely entitled to the total of $25 per month for the time the defendant admits alimony was not paid, that is, from the date of her remarriage in 1946 until this proceeding was brought in 1951, a total of 60 months, which simple arithmetic shows would amount to $1,500.

We are thus confronted with the problem as to whether, where the equities weigh heavily against the wife and in favor of the husband, it is nevertheless mandatory ■on the court to enter judgment for the full amount of alimony installments which have accrued after the wife’s marriage to another man.

The plaintiff bases her claim on the case of Myers v. Myers ¹ in which this court stated, inter alia, (a) that a judgment for alimony does not automatically terminate upon the remarriage of the wife, and (b) that the right to accrued alimony is vested and may not be defeated by a subsequent order of court eliminating alimony back to the date of remarriage. In this case we will be concerned only with segment (a) just referred to, which will be hereinafter referred to as the Myers case rule. Inasmuch as this rule, as it would apply in the instant case, seems strangely dissonant from the rules of equity and good conscience which apply generally to matters involving divorce and domestic problems attendant thereupon, it appears meet .to make critical inquiry concerning it. This we do in two phases: First as to where it came from and how it got into our law; and second, as to what its actual status in the law of our State is.

The Myers case cites, as authority for the rule therein announced, the case of McGill v. McGill,² and the authorities which are referred to in that case. In the McGill case the Supreme Court of Kansas said : “Whatever may he thought, or should be thought, about the policy or propriety of requiring a divorced husband to continué payments of alimony to a wife remarried to another man, the authorities are preponderant in support of the doctrine that her remarriage does not of itself operate as a release of the obligation, although it may well be a ground of application for discharging the defendant from further payments.” (Emphasis added.) An examination of the encyclopedias and annotations which are cited to support this statement, 14 Cyc. 878; 1 R.C.L. 950; 2 A. & E. Ency., 2d Ed., 138; note, 11 Ann.Cas. 523, and the cases' upon which they base the statement, Shepherd v. Shepherd, 1 Hun 240, affirmed, 58 N.Y. 644; Brandt v. Brandt, 40 Or. 477, 67 P. 508; King v. King, 38 Ohio St. 370, shows that the judicial decisions arc not so “preponderant” in favor. of this rule as the Kansas Court assumed.

Of the three cases just referred to, only that of Shepherd v. Shepherd, supra, can actually be said to stand for the proposition that a wife does not lose her right to alimony on remarriage. In Brandt v. Brandt, supra, the Supreme Court of Oregon did not decide whether alimony automatically terminates when the wife marries, but ruled that inasmuch as the parties were before the court, the alimony was retrospectively terminated as of the date of the remarriage. This achieved the same result as if there were automatic termination.

The case of King v. King, supra, is important to the problem we are considering. It seems to present the real situation from which the rule originated. There the award was for a lump sum of $1,000 as permanent alimony, payable in monthly installments. It was held that remarriage did not cut off the wife’s right to receive the full amount of the award even though some of the installments remained to be paid after the subsequent marriage. This rule is perfectly sound and logical when applied to the facts in the King case, but the error apparently has come about in applying it where the award was not for a lump sum, but merely for indefinite current support. The clear distinction which obviously exists between these two- situations has received judicial recognition. The courts of Illinois ³ and Georgia ⁴ hold that where the alimony is in a lump sum payable in installments there is no automatic termination on the wife’s remarriage; and that this creates an absolute right to the amount so awarded, but indicate that where the alimony is strictly for the current support of the wife, without limit as to the total amount or the number of installments, remarriage of the wife automatically ends her right to such alimony. This distinction is also suggested in the Oklahoma case of Gilcrease v. Gil-crease.⁵

A survey of decisions which have dealt with this problem indicate that, even though the view expressed in the Myers case is sometimes given lip service as being the general rule, there is actually no preponderance of authority supporting it.⁶ In addition to the case of McGill v. McGill and the authorities therein cited, herein-above referred to, it has been announced in the jurisdictions of Missouri ⁷ and New Jersey,⁸ but certain other authorities which have been referred to as in accord with the Myer’s rule, are not so in fact. In Phy v. Phy (Or.),⁹ Morgan v. Morgan (Ala.),¹⁰ Heston v. Odlin (Wash.),¹¹ and Mindlin v. Mindlin (N.M.),¹² the courts were only faced with the problem of prospective modification ; there was no- question as to alimony accruing after the remarriage of the wife.

In some of the few jurisdictions wherein the rule has been announced, recognition of its unsoundness has been manifest by the fact that the legislatures have seen fit to abrogate it. In New York¹³ and New Jersey,¹⁴ after the Shepherd and Cropsey cases respectively, statutes were passed! providing that upon application of the husband, it is mandatory on the court to terminate all alimony subsequent to the wife’s-remarriage. And in California, where re--troactive elimination of alimony was permitted upon petition, by statute, petitioning is now unnecessary, and remarriage of the wife automatically terminates her right to alimony.¹⁵

On the other hand, the following jurisdictions hold that remarriage automatically terminates any right to alimony: Mississippi,¹⁶ Arkansas,¹⁷ Illinois,¹⁸ Maryland,¹⁹ Kentucky,²⁰ and Georgia.²¹ Also to be classified with this latter group, so far as result is concerned, are the jurisdictions-which hold that after the wife’s remarriage, the court, upon proper petition, may retroactively eliminate the alimony back to the date of the marriage i Minnesota, ²² Oregon,²³ Michigan,²⁴ Connecticut,²⁵ Massachusetts,²⁶ South Dakota,²⁷ Idaho,²⁸ and Maine.²⁹

One is hard pressed to find any rational basis to support the view that remarriage does not terminate the obligation of the former husband to pay alimony. As a matter of fact, the cases supporting it are •often apologetic, placing the blame upon “precedent” or erroneously assuming that the weight of authority supports it, a good example of which is shown by the emphasized language from the McGill case hereinabove quoted. The Shepherd case, supra, reasoned that because the right to •alimony is strictly statutory, and as the statute says nothing about remarriage terminating it, the court cannot read into it the condition that the wife is only entitled to alimony as long as she remains unmarried. Another justification of the rule is based upon the rationale that the statute which provides that “any order for the payment ■of money has the force and effect of a judgment” makes the accrued payments •absolute and indefeasible.

Neither of those ideas really goes to the heart of the problem with which the court is dealing: The necessity of the wife to receive alimony and the duty of the husband to pay it. During coverture the husband voluntarily, or as an obligation incidental to the marital status, provides for the wife’s support, after divorce the alimony is provided as a social necessity as a substitute for such support. It seems quite incongruous that such substitute should continue after she has married to another, who has assumed such burden, and thus give the wife the double right to support by receiving it from two individuals.

The foregoing reasoning has been accepted as persuasive whenever courts have given any consideration to the social and legal aspects of the problem, as is pretty well epitomized by the text writer in 17 Am.Jur. 475:“ * * * it is illogical and unreasonable that she (the wife) should have the equivalent of an obligation for support by way of alimony from a former husband, and an obligation from a present husband for an adequate support at the same time. It is her privilege to abandon the provision made by the decree of the court for her support under sanction of the law, for another provision for maintenance which she would obtain by a second marriage, and when she has done so the law will require her to abide by her election * * *. ” That the judicial decisions adopt this view is illustrated by the statements from the Supreme Court of Oregon in the case of Brandt v. Brandt, supra, that after the wife had remarried, “ * * * there are no considerations of right or equity that would require him [the former husband] to again assume the obligation” of supporting his' former wife; and as simply and aptly put in the case of Sides v. Pittman, supra, “* * * it is contrary to the principles of justice to require a former husband to support the wife of a later husband.”

From an examination of a great number of authorities on this subject it seems fair to state that the preponderance of them, particularly in the later cases, hold that alimony automatically terminates upon remarriage, contrary to the Myers case rule. And this seems to us to be the sounder view, not only upon the basis of the weight of authority, but upon the better reasoning. We then turn to an analysis of the status which the contrary rule as introduced in the Myers case has in the law of our own state.

In the Myers case itself, from which the doctrine keys into our law, the opinion affirmatively recites-that the later marriage occurred three months and 24 days before the interlocutory period was up, thus indicating that, there was in fact no valid subsequent marriage.³⁰ It follows that what was said in that case about alimony continuing after remarriage is actually but dicta. Nevertheless, the rule therein stated has been referred to in several subsequent Utah decisions, which we refer to briefly to show what this court has done with respect thereto.

The closest thing we have to a square holding that alimony continues after remarriage of a wife is in Marks v. Marks.³¹ The divorced wife remarried November 9, 1935. On November 18 the husband filed a petition for modification of the decree. Pursuant to stipulation of the parties the court terminated the alimony after December. No appeal was taken. In a later proceeding the wife petitioned the court for a judgment of amounts accrued under the decree; she was awarded arrears of alimony for the months of November and December. This was affirmed on appeal. The court stated that under the decision of the Myers case, the judgment for the November installment must stand because it had accrued before the petition to modify was filed; and the December payment stood because no appeal was taken from the order allowing it. This latter reasoning applies and was controlling as to the November installment also and very -well could have been the basis of the court’s decision in that regard. It would have been the correct conclusion with respect to •the November payment without reference to whether the court could have eliminated it.

In Rockwood v. Rockwood,³² it was contended that support money to the children should be terminated because their mother had remarried. The court cited the Myers •decision and said: “If the remarriage of a divorced wife does not as a matter of law relieve the former husband from the obligation to pay alimony decreed to her, a forti-ori it should not as matter of law relieve him from the payments decreed for the support of the children.” However, as the court there said, the considerations are different where the support of the children is involved than where it is only a question ■of alimony to the wife. No alimony was awarded in the Rockwood case and it cannot be construed as holding that alimony ■continues after remarriage of the wife. Nor can Cole v. Cole³³ or Openshaw v. Openshaw.³⁴ In these cases the wife had not remarried; the Myers case was cited •only for the proposition that installments ■of alimony become vested and the court had no power to modify the decree as to them, with which problem we are not here concerned.

As is indicated by the foregoing, insofar ■as we have been able to discover, there is no case in this jurisdiction in which the •imposition of a judgment for alimony, accruing after remarriage of the wife; is actually and necessarily based upon the proposition that alimony does not terminate upon remarriage of the wife. And it seems unquestionable that we have no precedent which would make mandatory any such result in the face of strong equitable considerations against it, such as obviously exist in the instant case.

It is also suggested that the Myer’s case rule having been announced as the law of this state since 1923, any change should be made by the Legislature as was done in New York and New Jersey. The doctrine of stare decisis is ingrained in our law and is entitled to serious consideration. The reason underlying it is that people should know what their legal rights are as defined by judicial precedent, and having conducted their affairs in reliance on such rights, ought not to have them swept away by judicial fiat. As we said in Allen v. Board of Education,³⁵ “where the earlier opinion announced and applied a rule fixing the status of property or affecting title thereto, or where the law laid down in such decisions has apparently entered into the general life of the people and it is fair to assume that contracts and other relationships have been entered into on the faith of the announced rule, the doctrine should apply in all its vigour and it should be left to the Legislature to correct whatever future ill might be thought the result of the announced rule.”

The rule in question is not such that it comes within any of these categories and to hold as we are doing will not thwart any of the purposes for which the doctrine of stare decisis was developed. We see no reason why anyone should be in a position of having acquired rights in reliance upon such being the law so that it would now be unjust to deprive her of those rights. Notwithstanding this, we remain fully aware thai the court should not lightly or without grave cause change the course of the law. However, where no rights which have been acquired in reliance on a proposition of law will be vitally affected, the doctrine of stare decisis should not be the cause of compelling the perpetuation of error.

In the case of Salt Lake City v. Industrial Commission,³⁶ in overruling a long line of prior decisions, Mr. Chief Justice Wolfe, speaking for this court, stated: “In this regard we think the opinion in that case [Utah Consol. Mining Co. v. Industrial Comm., 57 Utah 279, 194 P. 657, 16 A.L.R. 458] and the cases which followed it were in error. ■ Since it did not involve a rule of property on which rights were acquired and maintained, we think the error should at this time be rectified.” Thus when it plainly appears that error exists we should not hesitate to correct it. And this is true a fortiori where as here, the Myers rule cannot be said to have any firm footing in our law.

It appearing that the Myers rule has very little foundation in the decisions-of the courts of our sister states, of our own state, or in reason, to induce us to> adhere to it we conclude that notwithstanding what has been said in earlier cases, there is implicit in the divorce decree the provision that the alimony continues only so long as the wife remains unmarried. Accordingly the alimony awarded plaintiff terminated upon her remarriage, and she is in no position to complain of the amount of the judgment she received.

In reaching this decision we are not to be understood as holding that the same result would eventuate where a sum of alimony was decreed in lieu of dower, or in settlement of property rights acquired by the wife,³⁷ or where the alimony is awarded in a lump sum payable in installments.³⁸ And we further observe that under some exceptional circumstances this result might be so unconscionable or inequitable that the court, under its equitable powers would decree that the wife does not lose her right to alimony upon remarriage. In such instance the burden would be upon the wife to prove those facts.³⁹

The receiving evidence outside of court complained of, related to two matters: (a) Talking privately with the children, over 10 years of age, concerning their preference as to which parent they wanted to live with and (b) In taking a report from the juvenile authorities.

(a) Plaintiff does not question the propriety of the judge learning the preference of the children, nor of taking it into •consideration in the award as to their custody,⁴⁰ but finds fault with his talking to them alone in chambers and then announcing the result of these conferences in open •court. It can readily be seen that embarrassment and serious emotional problems might arise from compelling children to •express such preference in the presence of their father and mother, or in a formal ■court proceeding. Such matters are often fraught with considerable delicacy and it is perhaps best that the trial judge should not feel confined in any straight-jacket as to procedure. He is not involved in the •emotional stress that often possesses the parties and he can tell best how that matter should be handled. The desirable way is for the parties to stipulate as to how the court may do it, and such is the usual procedure. If counsel desire to be present, the privilege should be accorded unless some compelling reason to the contrary exists. In the instant case the court apparently did not advise counsel in advance and give him the opportunity to make any choice about it. Despite this irregularity, no claim is made, and there is no reason to suspect, that the children were improperly influenced, or that the selection indicated was not correct. If such had been the case, the matter should have been called to the attention of the court, affording an opportunity to take affirmative steps to correct it.

(b) Plaintiff further asserts that rule 43(a), U.R.C.P., providing, “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules” was violated by Judge Hendricks’ asking the juvenile authorities to-investigate the homes-of both parties and make a report thereon. It is unquestionably true that inasmuch as the case must be decided upon the evidence, the litigants and their counsel are entitled to know what the evidence is, so they have an opportunity to cross-examine witnesses, and to meet, such evidence. • We have no desire to approve of any departure from the orderly process of law just mentioned, nor to encourage either the taking of evidence in secret, or the keeping of it from those whose rights are to be decided upon it.

If the judge felt that an independent investigation of the conditions in the respective homes was necessary, it would have been proper for him to have so advised counsel and had their agreement before 'causing the investigation to be made. This was not done but we do not believe that the procedure followed resulted in prejudice to the plaintiff. First, because the substance of the report of Mrs. Berrett, the social worker assigned to the case, was made known in open court and the only-request made by plaintiff’s counsel was that he be given the right to cross-examine her, which was afforded him, so that it may fairly be said that his conduct was tantamount to acquiescence in the procedure. Second, the information about the homes could only have related to the placement of the children. The evidence, wholly apart from the report from the social worker, supports the wisdom of the trial judge in permitting the children to continue to reside with their father, where they had been for several years, and where they chose to continue to live. Any irregularity in the procedure does not appear to be of sufficient import to justify ordering a retrial of the issue.⁴¹

Both the leaving of the children with defendant, and the refusal of the trial court to find defendant in contempt were, under the fact situation shown, within his prerogative. As to the charge that an award of $150. attorney’s fee for plaintiff’s counsel is inadequate: Since no evidence was adduced on the matter, theré is no basis upon which we could say that the trial court abused his discretion in that regard.

Judgment affirmed. Costs to- respondent.

McDonough, henriod, and WADE, JJ., concur.

1 . 62 Utah 90, 218 P. 123, 30 A.L.R. 74.

2 . 101 Kan. 324, 166 P. 501, 503.

3 . Dobson v. Dobson, 320 Ill.App. 687, 51 N.E.2d 1010; Morgan v. Lowman, 80 Ill.App. 557.

4 . Green v. Starling, 203 Ga. 10, 45 S.E.2d 188; White v. Murden, 190 Ga. 536, 9 S. E.2d 745.

5 . Gilcrease v. Gilcrease, 186 Okl. 451, 98 P.2d 906, 127 A.L.R. 735.

6 . See cases collated in 30 A.L.R. 81; 42 A.L.R. 602; 64 A.L.R. 1273; 112 A.L.R. 253; 6 A.L.R.2d 1296.

7 . Nelson v. Nelson, 282 Mo. 412, 221 S. W. 1066.

8 . Cropsey v. Cropsey, 104 N.J.Eq. 187, 144 A. 621, 64 A.L.R. 1266.

9 . 116 Or. 31, 236 P. 751, 240 P. 237, 42 A.L.R. 588.

10 . 203 Ala. 516, 84 So. 754.

11 . 125 Wash. 477, 216 P. 845.

12 . 41 N.M. 155, 66 P.2d 260.

13 . Civil Practice Act, § 1159, Gilbert’s Civil Practice 1922, as amended Laws of N. Y. 1934, C. 220, p. 70-3 now § 1172-c. See Kirkbride v. Van Note, 275 N.Y. 244, 9 N.E.2d 852, 112 A.L.R. 243.

14 . Laws of N. J. 1933, c. 145, par. 1, p. 296, N.J.S.A. 2A:34-23, 25. See Madden v. Madden, 136 N.J.Eq. 132, 40 A.2d 611.

15 . Cal.Civ.Code (Deering 1949) § 139. See Stucker v. Katz, 92 Cal.App.2d 843, 207 P.2d 879.

16 . Sides v. Pittman, 167 Miss. 751, 150 So. 211.

17 . Bowman v. Worthington, 24 Ark. 522.

18 . Morgan v. Lowman, 80 III.App. 557;

19 . Knabe v. Knabe, 176 Md. 606, 6 A.2d 366, 124 A.L.R. 1317.

20 . Montgomery v. Offutt, 136 Ky. 157, 123 S.W. 676.

21 . White v. Murden, 190 Ga. 536, 9 S.E.2d 745.

22 . Hartigan v. Hartigan, 145 Minn. 27, 176 N.W. 180.

23 . Brandt v. Brandt, 40 Or. 477, 67 P. 508.

24 . Herman v. Wayne Circuit Judge, 236 Mich. 604, 211 N.W. 52.

25 . Cary v. Cary, 112 Conn. 256, 152 A. 302.

26 . Watts v. Watts, 314 Mass. 129, 49 N.E. 2d 609.

27 . Wenzel v. Wenzel, 67 S.D. 537, 295 N. W. 493.

28 . McHan v. McHan, 59 Idaho 496, 84 P.2d 984.

29 . Bubar v. Plant, 141 Me. 407, 44 A.2d 732.

30 . Sanders v. Industrial Comm., 64 Utah 372, 230 P. 1026.

31 . 98 Utah 400, 100 P.2d 207.

32 . 65 Utah 261, 236 P. 457, 459.

33 . 101 Utah 355, 122 P.2d 201.

34 . 102 Utah 22, 126 P.2d 1068, and 105 Utah 574, 144 P.2d 528.

35 . Utah, 236 P.2d 756, 763.

36 . 93 Utah 510, 74 P.2d 657, 658.

37 . Nelson v. Nelson, 181 Or. 494, 182 P. 2d 416. See 30 A.L.R. 89; 64 A.L.R. 1275; 112 A.L.R. 257.

38 . See Green v. Starling, supra; Dobson v. Dobson, supra.

39 . See Cary v. Cary, supra.

40 . 30-3-10, U.C.A.1953.

41 . Startin v. Madsen, Utah, 237 P.2d 834; U.R.C.P. 61.