Morrow v. Morrow

Opinion

KINGSLEY, J.

On April 13, 1965, plaintiff (wife) was granted an interlocutory decree of divorce from defendant (husband), which approved and incorporated the executory provisions of á property settlement agreement theretofore entered into between the parties. On September 20, 1965, a final decree was entered which confirmed and carried forward the terms of the interlocutory decree. So far as is herein pertinent, the decree granted to the wife custody of the two minor children of the parties, with visitation rights in the husband, and made the following provisions for child support and for alimony:

“2. The defendant is ordered to pay directly to the plaintiff for the support and maintenance of said minor children the sum of One Hundred

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Fifty Dollars ($150.00) per month for each of the two children or a total of Three Hundred Dollars ($300.00) for the two children, payable on the 1st of each month, commencing May 1,1965.

“3. The defendant is ordered to pay directly to the plaintiff in fulfillment of his statutory obligations for the support of the plaintiff the sum of One Thousand Four Hundred Ninety Dollars ($1,490.00), payable on the first day of each and every month from and after February 1, 1965, and continuing until January 1, 1967, whereupon such payments shall be in the sum of One Thousand Two Hundred Dollars ($1,200.00), payable on the first day of each month from and after February 1, 1967, to a date which is One Hundred Twenty-one months (121) from April 1, 1964. Said payments shall continue until, and shall cease upon the first of the following events to occur: wife’s death, wife’s remarriage or One Hundred Twenty-one (121) months after April 1,1964.”

The husband made the payments as required to and including the alimony payment of $1,200, due on April 1, 1968. The wife remarried on April 5, 1968. Upon discovery of that fact, the husband demanded a return to him of $1,000, on the theory that the wife was entitled to only the pro rata share of the monthly payment covering the days she was unmarried. On the wife’s rejection of that demand, the husband announced that he would withhold the installments of child support due on May 1, 1968, and thereafter, until he had recouped the $1,000 he claimed to be due him from the wife. When the May 1 st child support payment was not made, the wife procured and levied a writ of execution for $300, under which the sum of $317.19 was seized by a levy of the husband’s bank account.