Ede v. Ede

[719]

AGEE, J.

On May 28, 1959, the federal government levied upon plaintiff for hack income taxes incurred by her and her former husband, the defendant herein, for the years 1953 and 1954. She paid the amount of the levy, $4,016.49, and then recovered a judgment herein against defendant for the amount so paid. Defendant has appealed from such judgment.

On July 14, 1955, during the pendency of a divorce action between them, the parties executed a property settlement agreement whereby plaintiff received the family home and furnishings therein, two life insurance policies, balance due on a sale of real property, and an automobile. Defendant received three meat businesses operated under his name, one panel delivery truck, two automobiles, a house trailer, two life insurance policies, and a lot adjacent to the family home, including a shed thereon and the tools, equipment and implements stored therein. Provision was also made in the agreement for the support by defendant of plaintiff and their two children, aged 17 and 11 years, respectively, and the maintenance by defendant of two insurance policies on the lives of the two children.

The parties executed the agreement in the presence of each other and their respective attorneys, who signed the agreement as witnesses. The validity of the agreement is not questioned. The divorce became final in July, 1956.

The only issue on this appeal is the effect to be given clause 7 of the agreement, which provides as follows: “Party of the second part hereby agrees to pay all of the outstanding community bills incurred by the parties hereto up to and including the 14th day of February, 1955, save and except any indebtedness that may be due on that certain real property hereinabove transferred and conveyed to first party, and agrees to keep first party free and harmless from any and all claims of creditors for such indebtedness.”

Following a non jury trial, the court made findings that “at the time said agreement was entered into there were outstanding federal income taxes due and owing to the United States Government for the years 1953 and 1954 . . .,” and that defendant has “failed and refused to pay said taxes or interest although demand had been made therefor,” and that “plaintiff has been required to pay the same for said years. ...” These findings are not questioned.