Opinion
No. 33629.
Filed February 3, 1956.
1. Divorce. Section 42-312, R.R.S. 1943, specifically provides that the court in a divorce action retains jurisdiction of the subject matter and the parties for the enforcement or modification of a judgment for maintenance of children, and prescribes the method by which a decree for child support may be modified. 2. ___. Where a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, such payments become vested in the payee as they accrue. The courts are without authority to reduce the amounts of such accrued payments. 3. Accord and Satisfaction. An accord and satisfaction is predicated upon an agreement between the parties based upon a consideration and fully executed on the part of the defendant, whereby the plaintiff's cause of action is satisfied or discharged. 4. Divorce. A proceeding in a divorce case with reference to an adjudication of child support is a continuation of the divorce suit and one of its incidents, and an attorney's fee for services rendered in this court may be allowed and taxed as costs.
APPEAL from the district court for Lancaster County: HARRY ANKENY, JUDGE. Reversed and remanded with directions.
Charles Ledwith, for appellant.
Towle, Young Scheaff and Thomas J. McManus, for appellees.
Heard before SIMMONS, C.J., CARTER, YEAGER, WENKE, and BOSLAUGH, JJ., and KOKJER, District Judge.
This is an action brought in the district court for Lancaster County by Edward W. Ruehle, the defendant in a divorce action brought by Aneita F. Ruehle, plaintiff therein, for the purpose of obtaining a judgment for child support rendered against him in the divorce action adjudged satisfied and released of record. The plaintiff in the divorce action, by cross-petition in the instant case, prayed for an accounting and that a lien be created on certain real estate held in the name of the defendant Grace Ruehle, the present wife of Edward W. Ruehle, for amounts payable as child support.
The record discloses that Aneita F. Ruehle obtained a decree of divorce from Edward W. Ruehle on May 18, 1939, and was awarded custody of their daughter Jo Ann, then 8 years of age, until further order of the court, and the sum of $40 a month for child support to be paid to the clerk of the district court for Lancaster County on the first day of each month to be delivered to Aneita F. Ruehle upon her receipt therefor. On November 29, 1939, the husband, Edward W. Ruehle, filed a supplemental petition for modification of the original decree of divorce with reference to child support. To this petition Aneita F. Ruehle filed an answer and cross-petition requesting an increase in child support to $75 a month. A decree was entered by the trial court on February 15, 1940, finding that the defendant Edward W. Ruehle should pay child support in the amount of $50 a month commencing March 1, 1940, payable to the clerk of the district court until further order of the court.
By stipulation of the parties filed November 30, 1940, it appears that there were delinquent child support payments in the amount of $229.84 for which Aneita F. Ruehle agreed to accept $104.92 in full payment. In addition, the defendant was to pay costs in the amount of $38.79 and attorney's fees in the amount of $63, and the amount of $15 on the first day of December 1940 and on the 15th day of December 1940, and on the same dates each month thereafter. In consideration of such payments, Aneita F. Ruehle was not to issue execution, garnishment, or other process against the defendant Edward W. Ruehle as long as the payments continued. On March 1, 1941, if all the payments had been promptly paid, Aneita F. Ruehle was to release her judgment for child support for the amounts accrued, and in the event payments were continued then at the expiration of each 3 months thereafter. The stipulation provided further that in the event Edward W. Ruehle failed to make any payments as therein provided, the plaintiff Aneita F. Ruehle, at her election, might terminate the agreement forthwith and take such steps as she desired to collect child support in the amount of $50 a month for such period of time as she had last receipted for in full. The stipulation provided further: "It is not the intention of the parties to modify the decree of this court as it now stands, but that said decree shall remain in full force and effect, subject, however to this agreement between the parties." The stipulation was dated November 28, 1940.
On January 8, 1953, the defendant Edward W. Ruehle filed a petition in the district court. This petition was later amended. We make reference to the amended petition containing the following allegations in substance. The petition set forth the date of the decree of divorce, the awarding of custody of the minor child, child support and the manner in which the same should be paid, and alleged that the child support payments were made directly to Aneita F. Ruehle or to the clerk of the district court until September 1948, at which time Edward W. Ruehle had an oral conference with Aneita F. Ruehle about sending their daughter to Wesleyan University; that it was orally agreed by and between Aneita F. Ruehle and Edward W. Ruehle that in lieu of child support payments the defendant Edward W. Ruehle would pay all of the expenses of the daughter while she attended Wesleyan University; that Edward W. Ruehle did assume and pay such expenses which were far in excess of the monthly child support payments; that such payments were in lieu of child support payments; and that he paid all the tuition, board and room, and other expenses of their daughter Jo Ann from October 1948 until August 17, 1949. The amended petition further alleged that on or about August 1, 1949, the daughter Jo Ann decided to enter nurses training at Bryan Memorial Hospital, and it was agreed by and between Aneita F. Ruehle and Edward W. Ruehle that the latter would pay the entry expense of $100 and any additional expenses in connection with Jo Ann's training in lieu of child support that should have been paid to the clerk of the district court; that it was the understanding and belief of Edward W. Ruehle that Aneita F. Ruehle would accept the aforesaid payments at Wesleyan University and Bryan Memorial Hospital and all expenses of the daughter in connection therewith as full payment of child support as it became due, and that Aneita F. Ruehle would release and discharge Edward W. Ruehle and the judgment against him; that Jo Ann, the daughter of the parties, attained her majority on August 17, 1951; and that Edward W. Ruehle relied on the oral agreement with Aneita F. Ruehle and made all the payments as provided for by the oral agreement believing that Aneita F. Ruehle would credit him with such payments and release the judgment for child support against him, which Aneita F. Ruehle failed and refused to do.
The answer of Aneita F. Ruehle to the amended petition denied that Edward F. Ruehle ever made any child support payments directly to her other than to the clerk of the district court with her consent; denied the oral agreement as pleaded in the amended petition; and admitted that on August 1, 1949, Jo Ann decided to enter nurses training at Bryan Memorial Hospital, and that on August 17, 1951, Jo Ann reached her majority and became self-supporting.
In the cross-petition Aneita F. Ruehle set forth the modification of the decree as heretofore mentioned, and the stipulation, and pleaded that she never released her judgment for child support on March 1, 1941, or any other date; that the stipulation was void and of no effect; pleaded the installments of child support and interest thereon due; that the legal relations of the parties had been affected by a conveyance of real estate to the present wife of Edward W. Ruehle dated June 8, 1951; that the construction of the deed was necessary to determine the rights of the parties; that an actual controversy existed and justiciable issues were presented, and a declaratory judgment on the issues would terminate the controversy; pleaded the purchase price of the property paid by Edward W. Ruehle, the mortgage thereon, and other facts with reference thereto; that a trust was created; and that Aneita F. Ruehle was without an adequate remedy at law. The prayer was for dismissal of Edward W. Ruehle's amended petition and for an accounting, interest, and a declaration of the rights and status and other legal relations of the parties as affected by the conveyance to Edward W. Ruehle's present wife of the real estate as described in the cross-petition, and to declare and adjudge that a trust of such real estate had resulted and was subject to a lien.
The trial court entered a decree on April 21, 1954, finding that the stipulation entered into between the parties on November 28, 1940, suspended the right to enforce the judgment as long as there was no breach of the agreement; that the oral agreement between Edward W. Ruehle and Aneita F. Ruehle that said defendant Edward W. Ruehle, in lieu of payments to the clerk of the district court for child support, would take over the cost of providing an education for the daughter Jo Ann Ruehle was supported by ample consideration, and that there was complete accord and satisfaction; that Edward W. Ruehle was entitled to a release and satisfaction of the judgment for child support; and that the cause of action against the present wife of Edward W. Ruehle be dismissed.
Aneita F. Ruehle, the plaintiff, filed a motion for new trial which was overruled. Thereafter she perfected appeal to this court.
Edward W. Ruehle testified that he made payments to the clerk of the district court which approximated $15 each 2 weeks from December 1, 1940, to June 1949; that the daughter Jo Ann lived with her mother; that in the fall of 1948 Jo Ann changed her residence by entering Wesleyan University and moving onto the campus in Johnson Hall, girls' dormitory at University Place, on November 17, 1948, and from that time on did not live with her mother; that on October 12, 1948, prior to the time Jo Ann entered Wesleyan University, he had a conversation with Jo Ann and her mother relative to Jo Ann moving from the mother's home to the school; that school had started at that time; that in the conversation had with Aneita F. Ruehle he asked her if Jo Ann had talked to her about going to Wesleyan to live in Johnson Hall, to which she replied that Jo Ann had; that he then asked her if it was agreeable for Jo Ann to move out, and received a reply that if it was Jo Ann's wish it was agreeable; and that he then asked her if Jo Ann had discussed the release of child support payments since he could not afford to pay child support in addition to paying all the expenses while Jo Ann attended the university and she replied that Jo Ann had. He further testified that he paid all of Jo Ann's expenses, tuition, board, room, sorority dues, and other items of expense, and the agreement was that he was to continue to pay child support payments into the district court until such time as it was determined whether or not Jo Ann would continue in school and be successful in her endeavors; that he paid the expenses of Jo Ann at the university and also $30 a month to the clerk of the district court until June 1949, with the understanding that Aneita F. Ruehle was to return the money paid into the clerk's office during such period of time that Jo Ann attended the university; and that Aneita F. Ruehle returned the payments in cash by giving the same to Jo Ann with instructions to return the money to her father. He further testified that in 1949 he stopped this method of making the payments upon the suggestion of Aneita F. Ruehle that it was a nuisance. During the summer of 1947 and 1948 Jo Ann worked at the Lincoln General Hospital as a nurses aid. In the fall of 1949 she entered Bryan Memorial Hospital to become a registered nurse. She continued her employment there until August 17, 1952. She was graduated from Wesleyan University in 1953. During the time she was taking training at Bryan Memorial Hospital he paid her expenses. Jo Ann subsequently married and moved to Los Angeles.
Jo Ann, by deposition, corroborated the testimony of her father that he paid all of her expenses for tuition, room and board at the university, also the child support as testified to by him, and that she was graduated from the university and became a registered nurse and self-supporting.
Aneita F. Ruehle did not testify. There is no contradiction of the testimony of Edward W. Ruehle and Jo Ann.
We hereinafter refer to the plaintiff, Aneita F. Ruehle, as appellant, and the defendant, Edward W. Ruehle, as the appellee.
The appellant sets forth many assignments of error. We consider the following important to a determination of this appeal: The trial court erred in finding there was a complete accord and satisfaction between the appellant and the appellee, and in failing to grant the relief prayed for in the appellant's cross-petition; and the trial court erred in not finding that the written stipulation between the appellant and appellee dated November 28, 1940, was void and unenforceable for lack of consideration moving to the appellant.
Section 42-312, R.R.S. 1943, provides as follows: "If the circumstances of the parties shall change, or it shall be to the best interests of the children, the court may afterwards from time to time on its own motion or on the petition of either parent revise or alter, to any extent, the decree so far as it concerns the care, custody and maintenance of the children or any of them."
Divorce and its incidents are matters of public concern over which the Legislature has authority. What policies to adopt concerning its regulation are for it to decide and are not for the courts. See Harrington v. Grieser, 154 Neb. 685, 48 N.W.2d 753.
The above-cited statute specifically provides that the court in a divorce action retains jurisdiction of the subject matter and the parties for the enforcement or modification of a judgment for maintenance of children and prescribes the method by which a decree for child support may be modified. See Miller v. Miller, 153 Neb. 890, 46 N.W.2d 618.
Where a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, such payments become vested in the payee as they accrue. The courts are without authority to reduce the amounts of such accrued payments. See, Wassung v. Wassung, 136 Neb. 440, 286 N.W. 340; Clark v. Clark, 139 Neb. 446, 297 N.W. 661.
The decree of a district court in a divorce action, insofar as a minor child is concerned, is never final in the sense that it cannot be changed but is subject to revision at any time in the light of changing circumstances. The district court has a continuing power, after decree of divorce, alimony, and child support has been granted, to review and revise the provisions of child support at its subsequent terms by petition of either of the parties. An application to modify the terms of a decree of divorce is not an independent proceeding. It is not the commencement of an action. It is simply a proceeding supplementary or auxiliary to an action in which certain matters theretofore determined are by the very terms of the statute subject to modification. See Bize v. Bize, 154 Neb. 520, 48 N.W.2d 649.
The stipulation, as appears in the instant case, in no sense modified the decree with reference to the child support, and it was so agreed by the parties as the stipulation discloses.
Accord and satisfaction is defined in Crilly v. Ruyle, 87 Neb. 367, 127 N.W. 251, as follows: "An accord and satisfaction is predicated upon an agreement between the parties based upon a consideration and fully executed on the part of the defendant, whereby the plaintiff's cause of action is satisfied or discharged."
The appellee contends that an accord and satisfaction prevailed in the instant case when the oral agreement between the appellant and the appellee was made on October 12, 1948, and that according to this agreement the appellant agreed to release the judgment against the appellee for all child support that might have accrued and become due under the decree. We are not in accord with the appellee's contention in this respect. We are in accord that there is a complete accord and satisfaction of the child support that would have accrued or become due from and after October 12, 1948, by reason of an agreement that was far more beneficial to the interests of the daughter Jo Ann. She had the benefit of an education and nurses training, and acquitted herself with honor, all through the efforts of the appellee by agreement with the appellant.
We conclude that there should be an accounting as to the child support payments which had accrued and were due up to October 12, 1948, with interest thereon at the legal rate, and that all credits should be given to the appellee for payments made by him for child support. The cause is remanded to the trial court for determination of the amount of child support due on this phase of the case.
The appellant, as shown by the pleadings heretofore stated in part, contends that the real estate described therein should be impressed with a lien for the payment of child support that might be found owing by the appellee. The record discloses the title to this property to be in the name of Grace Ruehle, the present wife of the appellee. We find nothing in the record to support the contention of appellant and, under the circumstances as presented in the record, there is no reason to impress a lien upon this real estate or subject any part of it to payments of child support that may be owing by the appellee.
The appellant contends she is entitled to an allowance for attorney's fees to be taxed as costs on the ground that this proceeding is a continuation of the divorce suit and one of its incidents.
We have held that under section 42-312, R.R.S. 1943, attorney's fees may be allowed until the subject matter is finally settled and determined. See Miller v. Miller, supra. It is true, the law permits an allowance of attorney's fees in a case such as this, but does not require it. Under the facts and circumstances as presented in the instant case, we believe that there should be no allowance of attorney's fees to be taxed as costs in behalf of the appellant, and that the appellant be required to pay her own costs and attorney's fees.
For the reasons given in this opinion, the judgment of the district court is reversed and the cause remanded with directions to modify the decree in accordance with the opinion.
REVERSED AND REMANDED WITH DIRECTIONS.
MESSMORE, J., participating on briefs.