Stuart v. Stuart

1976 OK 107, 555 P.2d 611, 1976 Okla. LEXIS 537

• Court: Supreme Court of Oklahoma
• Decided: July 27, 1976
• Docket: 46851
• Status: Published

Opinions

BARNES, Justice.

Appellant, Robert Terry Stuart, Jr., filed an application to terminate alimony payments on the ground that the Appellee, Beatrice Carr Stuart, had remarried and that Appellee had not made application to the court within ninety days thereafter for a determination that support was still needed and that circumstances had not rendered payment of the same inequitable. The trial court overruled the application of the Appellant to terminate support payments by reason of Appellee’s remarriage on the ground that the decree of divorce was a consent judgment which could not be modified without the agreement of both parties. The trial court further found that Appellant’s continued payment of alimony installments for a period of 39 months after he knew of Appellee’s remarriage estop-ped Appellant from asserting that the decree should now be modified, or that he should be relieved from making such payments. Appellant appealed said ruling.

The basic question for determination is whether the provisions of Title 12 O.S.1971 § 1289(b) are mandatory as to termination of support alimony payments where the trial court did not include in the divorce decree the statutory language regarding termination of support payments upon Appel-lee’s death or remarriage and the agreement upon which the divorce property settlement is based did not contemplate or provide for termination of payments upon Appellee’s death or remarriage.

Title 12 O.S.1971 § 1289(b) provides in pertinent part:

“(b) In any divorce decree entered after December 31, 1967, which provides for periodic alimony payments, the Court, at the time of entering the original decree, only, may designate all or a portion of each such payment as support, and all or a portion of such payment as a payment pertaining to a division of property.

“ * * * The Court shall also provide in the divorce decree that any such support payments shall terminate after remarriage of the recipient, unless the recipient can make a proper showing that said support is still needed and that circumstances have not rendered payment of the same inequitable; provided, however, that unless the recipient shall commence an action for such determination within ninety (90) days of the date of such remarriage, the Court shall, upon proper application, order the support judgment terminated and the lien thereof discharged. Laws 1965, c. 344, § 1. [Amended by] Laws 1967, c. 328, § 1; Laws 1968, c. 161, § 1, Emerg. eff. April 11, 1968.”

The pertinent provisions of the Divorce Decree entered by the trial judge are as follows:

“IT IS FURTHER ORDERED that the plaintiff is entitled to be paid alimony, maintenance and support in the total amount of Four Hundred Eighty Thousand Dollars ($480,000.00), payment to be at the rate of One Thousand Dollars ($1,000.00) on the 1st day of January, 1969, One Thousand Dollars on the 15th day of January, 1969, and a like amount on the 1st and 15th of each calendar month for a total period of twenty years; and it is further ordered that the alimony, maintenance and support payments shall not become a judgment such as would constitute a lien against any of the property of the defendant until and unless the defendant becomes delinquent in one or more payments;. and it is further ordered that this judgment not be placed upon the judgment docket until and unless the defendant should become delinquent in the payments thereafter. ******

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that the written Property Settlement Agreement dated the 4th day of November, 1968, whereby the parties have settled all their property rights, is fair, just, and equitable and the same is hereby ordered approved and incorporated herein by reference, granting the parties the right to withdraw the same from the Court files after due filing thereof is noted upon the appearance docket.”

(Emphasis supplied)

The applicable portions of the Property Settlement Agreement provide:

“7. Second party agrees to pay first party for alimony the sum of Four Hundred Eighty Thousand Dollars ($480,-000.00), payable at the rate of One Thousand Dollars ($1,000.00) on the 1st and One Thousand Dollars ($1,000.00) on the 15th of each calendar month for a period of twenty (20) years. ******

“14. Both parties agree that in the event a Divorce is obtained, that this Agreement may be presented to the Judge of the Court having jurisdiction over said Divorce action for his approval, and incorporation in the Decree if desired.

“THIS AGREEMENT constitutes a complete and full settlement of property settlement, alimony, maintenance, and support, and property division of the parties.”

The Appellant contends that the Court erred: (1) in finding that the divorce decree was a consent judgment or decree, and (2) in finding that the Appellant is estop-ped from asserting or claiming that the decree fixing said alimony payments should be modified, or that he should be relieved from making such payments.

Appellee argues the divorce decree herein cannot be modified except with consent of both parties, as it is a consent decree entered upon and pursuant to a written property settlement agreement between the parties and was not a decree entered by the Court of its own determination pursuant to 12 O.S. § 1289(b).

In support of her contention she cites Clement v. Ferguson, 287 P.2d 207 (Okl.1955), which held that whether a judgment is one obtained by consent of the parties must appear from the face of the record.

Appellant contends that the record evidence gives little, if any, support to Appel-lee’s claim that the decree was a consent decree. On the other hand, Appellee takes the position that the evidence in the record of this case, including the Decree of Divorce, the Property Settlement Agreement, the pleadings, and the transcript of the hearing, is sufficient to support the trial court’s finding that the decree was a consent decree and, thus, cannot be modified.

47 Am.Jur.2d, Judgments, § 1084, Form, extent, and content, states:

“As a general rule, a judgment to the rendition of which the parties have agreed should show on its face that it was entered by consent, but such a showing is not indispensable, and the fact may be established by other evidence.” (Emphasis supplied)

The trial court’s finding that the divorce decree was a consent judgment or decree is amply supported by the evidence in the record. The Decree of Divorce recited that both parties were present in open court and represented by counsel and that the court questioned both parties concerning the Property Settlement Agreement and approved and incorporated the same in the Decree of Divorce. The decree was signed by both parties and their respective counsel. No exceptions were taken by either party at the time the decree was entered.

It is important to note that no evidence indicates the property of the parties herein was ever enumerated to the trial court. On the contrary, the record shows that the Divorce Decree entered by the trial judge incorporates by reference the over-all division of property contained in the Property Settlement Agreement, and the decree is identical thereto.

The Court in Stanfield v. Stanfield, 22 Okl. 574, 98 P. 334 (1908), 61 A.L.R.3d 561, held that where alimony is adjudged to the wife in accordance with an agreement of the parties, duly entered into and made a part of the decree, the same, unaffected by fraud or mistake, is not subject to modification after the term at which the original decree was made.

If an agreement between the parties on the matter of support and maintenance is intended as final and binding, leaving nothing for the determination of the court on the question of the amount of the allowance, a decree in accordance therewith is not subject to modification without the consent of both parties thereto: See Dickey v. Dickey, 154 Md. 675, 141 A. 387 (1928); Emerson v. Emerson, 120 Md. 584, 87 A. 1033 (1913) ; Allcorn v. Allcorn, Mo.App., 241 S.W.2d 806 (1951); Tracy v. Tracy, Mo.App., 205 S.W.2d 947 (1947); and cases cited at 27A C.J.S. Divorce § 238, Note 80.25, et seq.

In our opinion the trial court correctly construed the nature of the decree here involved. We find the above reasoning compelling, and conclude that the record evidence is sufficient to support a finding that the Divorce Decree was a consent decree which cannot be modified.

We must now examine the Agreement to determine the intent of the parties with respect to the termination of alimony payments. We find no indication that the parties intended that it terminate on death or remarriage of the wife. It is significant that there is no language of terminability of the alimony payments in either the Property Settlement Agreement or in the Divorce Decree. If the parties had intended the payments to be terminable on death or remarriage of the Appellee, language to that effect would have been included in either the Agreement or Decree.

We also find the following factors to be persuasive in determining that the intent of the original agreement was that it not terminate on death or remarriage: (1) The Appellant husband testified that his net worth at the time of the divorce was approximately $4,300,000.00, and this estate was not inquired into or determined in the trial court; (2) the Appellant husband continued to pay the alimony installments regularly for three years after Appellee’s remarriage, with knowledge of said remarriage, before raising the issue in the case at bar; (3) there were obvious favorable tax consequences to the Appellant husband in having said payments construed as alimony for support rather than alimony pertaining to property division; and (4) from a reading of the Property Settlement Agreement alone, it would appear that the parties regarded the $480,000.00 to be for alimony for property division. For example, the last paragraph of the Agreement provided that “THIS AGREEMENT constitutes a complete and full settlement of property settlement, alimony, maintenance, and support, and property division of the parties.” Also, under paragraph 2, if the husband had died, the unpaid balance of $480,000.00 would be chargeable against his estate. If this were not intended as property settlement, the Appellee received very little in the way of division of property after being married seventeen years to a man of considerable wealth and bearing his four children. In our opinion, the Journal Entry of Judgment was not intended to change or modify the substantial rights of the parties under the Property Settlement Agreement. As a matter of fact, the Court found in the Journal-Entry of Judgment that the Property Settlement Agreement was “ . . . fair, just and equitable and is hereby approved and should be incorporated in this Decree by reference. ...”

It is contended by Appellant that the provision in 12 O.S. § 1289(b), relating to termination of support alimony on death or remarriage of the wife, should be read into the decree. This might be true if this were not a consent decree, but we have heretofore found that it was the intent of the consent decree that support alimony provided for therein should not terminate on death or remarriage of the wife.

The Tenth Circuit Court said in Butler v. Denton, 150 F.2d 687 (1945):

“ * * * The purpose and function of construing doubtful provisions in a judgment is to bring out and give effect to that which is already latently in the judgment. But a court has no warrant in the course of construing provisions of that kind to add new provisions, substantive or otherwise, which were omitted or withheld in the first instance.”

Thus, in construing the Decree of Divorce involved in this case to provide for termination of the alimony payments, as suggested by Appellant, the Court would of necessity have to imply into the original Agreement and Decree incorporating said Agreement therein a provision omitted therefrom. We believe the trial court properly refrained from recognizing such an implication.

Appellant’s final contention is that the trial court erred in admitting evidence on behalf of the Appellee as to the value of the properties owned by Appellant at the time the Divorce Decree was entered, for the reason that the same was incompetent, irrelevant, and immaterial. He asserts that the purpose for-which such evidence was offered by Appellee was to show that Appellant owned substantial properties at the time of the divorce and that the support alimony awarded by the Divorce Decree was not support alimony, but was alimony in lieu of property division.

In explanation, Appellee’s attorney stated the proffered testimony was introduced solely for the purpose of determining exactly what the husband received pursuant to the Decree of Divorce. We believe the trial court was correct in admitting it for this purpose.

In view of the foregoing, we conclude that the wooden and mechanical application of § 1289(b), which is prayed for by the Appellant in this appeal, is not necessary to effectuate the intended purpose of § 1289(b) and is inconsistent with the intent of the parties herein and the duty of this Court to ascertain the equities of the case and render justice accordingly.

We hold the provisions of 12 O.S. 1971 § 1289(b) are not mandatory as to termination of support alimony payments where it is a consent decree and it was the intent of the parties in their agreement, and in the decree incorporating that agreement, that payments not terminate on death or remarriage of the wife.

In view of our holding herein, we deem it unnecessary to discuss the alleged error of the trial court regarding the application of estoppel theory.

The judgment of the trial court is affirmed.

WILLIAMS, C. J., DAVISON, J., and ROMANG, Special Justice, concur. SIMMS, J., concurs specially. HODGES, V. C. J., and IRWIN, LAVENDER and DOOLIN, JJ., dissent. The Honorable RICHARD E. ROMANG was assigned to act as a Special Justice in this case instead of the Honorable WILLIAM A. BERRY, who certified his disqualification.