Summary
In Dailey v. Dailey, 171 Ohio St. 133, 167 N.E.2d 906, the Supreme Court of Ohio enforced a separation agreement, incorporated in a divorce decree, against the former husband after the remarriage of the wife, where the payments were for a fixed period of time, eleven years.
Summary of this case from Ellert v. C.I.ROpinion
No. 36244
Decided June 15, 1960.
Divorce and alimony — Divorce decree incorporating provisions of agreement of parties — Husband agreeing to pay alimony — Remarriage of wife — Decree not subject to modification, when — Agreement a part of property settlement.
APPEAL from the Court of Appeals for Franklin County.
A decree of divorce entered on October 25, 1951, incorporated the provisions of a written agreement theretofore entered into between the parties who will be designated herein, as in the trial court, as plaintiff and defendant. At the time of the agreement and decree, the parties' two children were adults and emancipated.
After reciting the desire of the parties to settle all questions of property rights, maintenance, support, alimony, dower and other interests, the agreement, in the portion agreed to be the only one pertinent hereto, reads as follows:
"2. The husband agrees to pay to the wife, as alimony, the sum of twenty-five thousand ($25,000) dollars within five (5) days from the signing of this agreement and in addition thereto, to pay to the wife the sum of twenty thousand ($20,000) dollars, not later than February 1, 1952, and in addition thereto, to pay to the wife the sum of ten thousand ($10,000) dollars each succeeding month of January for the next eleven (11) consecutive years.
"It is further agreed by the husband that in the event of his death prior to the payments of all monies referred to herein, the unpaid amounts remaining shall be a charge against his estate."
The provisions of the above-quoted portion of the agreement were complied with to, and including, the payment due in January 1957. On November 29, 1957, the plaintiff remarried. No payment was made in January 1958, and none has been made in any succeeding year.
On December 30, 1957, the defendant filed a motion in the trial court seeking a modification of the decree by terminating the annual payments as of January 1958, or, in the alternative, to reduce the amount of the payments. Testimony on this motion was taken by a court referral officer.
On July 18, 1958, the court overruled the motion of defendant and on the same day, in response to a motion of plaintiff for an order in contempt which had been filed by her on March 19, 1958, found the defendant in contempt of the prior order of the court.
Separate appeals taken by defendant were consolidated in the Court of Appeals, and the judgments of the trial court were both affirmed by that court.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Butler, Addison, Smith Carmack and Mr. Gale R. King, for appellee.
Messrs. Ginocchio Ginocchio and Mr. Earl W. Charls, for appellant.
It is contended by defendant that the recent decision of this court in Hunt v. Hunt, 169 Ohio St. 276, 159 N.E.2d 430, requires the reversal of the judgment below. With this contention we cannot agree.
Paragraph one of the syllabus in the Hunt case reads as follows:
"Where, in a divorce action, permanent alimony is ordered paid by the husband to the wife in a fixed amount per month, payable monthly `hereafter,' based upon an agreement between the parties which does not constitute a property settlement and is not related to support of children, and where the alimony order contains no provision for termination of such payments or reservation of jurisdiction by the court, the subsequent marriage of such wife to another man capable of supporting her constitutes an election on her part to be supported by her new husband and an abandonment of the provision for permanent alimony from her divorced husband." (Emphasis added.)
The emphasized portions of the above paragraph of the syllabus when compared with the provisions of paragraph two of the separation agreement herein clearly point up the distinction between the two cases. In the Hunt case, the payments were indefinite, and the syllabus clearly limits the decision to those cases of indefinite awards of alimony which have no fixed terminal dates.
In distinguishing the two cases we do not mean to intimate any departure from the statement of public policy expressed in paragraph two of the syllabus in the Hunt case. And were we of the opinion that paragraph two of the agreement herein provides for the indefinite payment of alimony without any provisions for termination, a reservation of jurisdiction would be implied in the court to exercise its equitable power to modify after the plaintiff's remarriage.
In our opinion, however, the conclusion is inescapable that the monetary provisions in paragraph two of the agreement are a part of an overall property settlement between the parties, and the provision for payment thereof over a period of years exceeding ten was an obvious attempt to avail of such benefits as may have been obtainable under the then existing regulations of the Department of Internal Revenue.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.
TAFT, J., dissents on the authority of Hunt v. Hunt, 169 Ohio St. 276, 159 N.E.2d 430.