Summary
In Holloway v. Holloway, 130 Ohio St. 214, 198 N.E. 579, 154 A.L.R., 439, this court unanimously held that, where an agreement is incorporated in a decree, the agreement is superseded by the decree, and the obligations imposed are not those imposed by contract but are those imposed by decree and are enforciboe as such.
Summary of this case from Robrock v. RobrockOpinion
No. 25372
Decided November 20, 1935.
Divorce and alimony — Contempt — Noncompliance with separation agreement incorporated in divorce decree.
Contempt proceedings lie against a husband for failure to pay alimony as provided in a separation agreement which is incorporated into and made a part of a divorce decree.
CERTIFIED by the Court of Appeals of Crawford county.
On December 31, 1927, a decree of divorce was obtained by Archie L. Holloway from Kathryn C. Holloway. The custody of their two minor children was granted to Mrs. Holloway. She was allowed $50 per month for support and maintenance of each child and $125 per month for her own support. This decree was predicated upon a separation agreement entered into between the parties before the divorce proceedings were instituted, which agreement was incorporated into and made a part of the decree.
The agreement and decree were complied with by Archie L. Holloway until August, 1932, when he ceased to pay a part of the sum he had agreed to pay. Contempt proceedings were instituted and he was found guilty of contempt. He instituted error proceedings and the Court of Appeals reversed the judgment on the ground of error in rejecting testimony offered by Mr. Holloway tending to prove his inability to comply with the order of court.
In June, 1933, Mrs. Holloway filed her second complaint in contempt and Mr. Holloway was found guilty of contempt of court. The Court of Appeals of Crawford county affirmed the judgment of the Court of Common Pleas and certified the case to this court as being in conflict with the decision of the Court of Appeals of Franklin county in the case of Traylor v. Traylor, 46 Ohio App. 87, 187 N.E. 722.
Plaintiff in error contends that failure on his part to comply with the terms of his contract is not contempt of court; that where a court approves a contract of separation as to payments the same does not constitute an order or decree of court upon which contempt proceedings can be predicated.
Mr. Alfred S. Leuthold, for plaintiff in error.
Mr. J.D. Sears, for defendant in error.
The sole question presented for our determination is whether contempt proceedings lie against a husband for failure to pay alimony in the amounts provided for in a separation agreement, which separation agreement is incorporated into and made a part of the decree of court.
A decree allowing alimony is enforcible by proceedings in contempt. The court awarding alimony has inherent power to enforce payment by contempt proceedings. 19 Corpus Juris, 282, Sections 645 and 646; Van Dyke v. Van Dyke, 125 Ga. 491, 54 S.E. 537; O'Callaghan v. O'Callaghan, 69 Ill. 552; State, ex rel. Bordeaux, v. Second Judicial District, 31 Mont. 511, 79 P. 13; In re Cave, 26 Wn. 213, 66 P. 425, 90 Am. St. Rep., 736.
There are some authorities holding that an agreement to pay alimony, although embodied in the decree for divorce, can not be enforced by contempt proceedings where the court had no authority to award alimony. Glynn v. Glynn, 8 N.D. 233, 77 N.W. 594. However, where the court has such authority, the agreement will be enforced by contempt proceedings.
The problem here presented is not the enforcement of an agreement by contempt proceedings, but rather the enforcement by contempt proceedings of a decree which has incorporated therein an agreement to pay alimony. The distinction is important. A decree is valid as such regardless upon what it may be grounded. There is nothing in the law to render a decree invalid or ineffectual merely because it is predicated upon an agreement of separation, which agreement is incorporated bodily in the decree. A decree which incorporates an agreement is a decree of court nevertheless, and as soon as incorporated into the decree the separation agreement is superseded by the decree, and the obligations imposed are not those imposed by contract, but are those imposed by decree, and enforcible as such.
A decree granting divorce and awarding alimony is an order of court in the enforcement of which the public has a vital interest. An alimony obligor is not exempt from the operation of the decree by reason of the separation agreement. To hold otherwise would be to reduce the status of a divorce and alimony decree to that of a commercial transaction. Marriage, however, is not a matter of commerce, nor is it merely a contract between the parties. Marriage is a basic social institution of the highest type and importance, in which society at large has a vital interest.
Where a court, in its divorce decree, adopts the language of a separation agreement, it does not thereby reduce the status of the decree to that of a mere contract. While a contract may become a decree of court, a decree of court can not assume the status of a mere contract. The right to alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support his wife. It is the law rather than contract which imposes this obligation upon the husband.
In the instant case the Common Pleas Court did more than merely confirm the agreement between the parties. It incorporated the agreement into the decree and made it an order of court.
It is true that a mere contract to pay alimony can not be enforced by contempt proceedings. But, as we stated above, in the instant case it is not the contract which is sought to be enforced, but the decree of court. Consequently, the inquiry is not whether the alimony obligor has paid the amounts provided for in the contract but whether he has paid the amounts ordered by decree of court. The husband's obligation to pay rests upon the decree.
Another contention made is that the award of alimony is in the nature of a debt, and can not be enforced by imprisonment. However, an alimony award is not a money judgment; nor is it in the nature of a business debt. Though it is an obligation imposed upon the husband, it is not such as may be characterized as a "debt" within the prohibition against imprisonment for debt. Consequently, the allowance of an alimony award may be enforced by proceedings in contempt and the recalcitrant may be punished by fine and imprisonment without violating the prohibition of imprisonment for debt. State, on Complaint of Cook, v. Cook, 66 Ohio St. 566, 58 L.R.A., 625, 64 N.E. 567.
A distinction may be drawn between ordinary judgments and an order for the payment of alimony. "An ordinary judgment at law does not order the defendant to pay anything. It simply adjudicates the amount owing from defendant to plaintiff and remits the plaintiff to his ordinary remedies by execution or otherwise to enforce payment. On the other hand, an order to pay alimony pendente lite, though partaking also, of the nature of a judgment * * *, goes further, and is a direct command of the court to the defendant to pay the sums therein mentioned. This command it has been the practice of courts from time immemorial to enforce by proceedings for contempt; * * *." Fowler v. Fowler, 61 Okla. 280, 161 P. 227, L.R.A. 1917C, 89. See, also, 2 Schouler on Marriage, Divorce, Separation and Domestic Relations (6th Ed.), 1998, Section 1835.
Holding as we do, the judgment of the Court of Appeals of Crawford county is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS and ZIMMERMAN, JJ., concur.