Schnerr v. Schnerr

THE COURT.

As the result of contempt proceedings instituted by plaintiff some four years after the entry of the final decree of divorce in the above action, the trial court made an order relating to the payment of alimony; and defendant has appealed from said order.

The divorce action was instituted in October, 1924, upon the ground of extreme cruelty. There were no - children, and no claim was made in the complaint either by allegation or prayer for alimony, temporary or permanent. With respect to property rights it was alleged “that the property rights of plaintiff and defendant have heretofore been settled by written agreement, and there is now no community property of said marriage of plaintiff and defendant”. The relief sought was a divorce, that plaintiff be permitted to resume her maiden name and general relief. The answer consisted of a general denial. An interlocutory decree was granted November 5, 1924, and on November 6, 1925, the final decree was entered. Both decrees were silent upon the subject of alimony,' but with reference to property rights each contained the following provision: “It is further ordered, adjudged and decreed, and this court does hereby order, adjudge and decree that the agreement between the parties hereto made and entered into under date of October 21, 1924, settling the respective property rights of said parties be and the same is hereby confirmed, ratified and approved, and the property rights of the said parties estab

[365]

fished as in said agreement set forth.” No appeal was taken from either decree. In June, 1930, more than four years after the entry of the final decree, plaintiff instituted contempt proceedings, pursuant to which a citation was issued directing the defendant to show cause on August 8, 1930, “why he should not be punished for contempt of court in disobeying the order and judgment of this court heretofore made and entered . . . requiring him to pay the sum of $75.00 per month on the 1st day of each and every month commencing January 1st, 1925, to the plaintiff in said action ...” Some time afterward the contempt proceeding came on for hearing, but there being no mention whatever in the complaint or in either decree, or elsewhere in the judgment-roll, of the subject of alimony, it was necessary to take evidence as to the contents of the property settlement agreement referred to in said decrees, and thereupon said agreement was admitted in evidence, from which it appeared that besides transferring to plaintiff a number of shares of corporate stock and certain real property, defendant paid a list of outstanding bills and agreed to pay to plaintiff $60 a month until January, 1925, and thereafter $75 a month during her life, or as long as she remained unmarried. Other evidence, oral and documentary, was taken and thereafter, to wit, on January 14, 1931, the court made the order from which this appeal was taken. It was thereby “ordered, adjudged and decreed: 1st: That the court has jurisdiction to issue and enforce the said order to show cause and that the above entitled court, both in the said interlocutory decree of divorce and in the final decree of divorce heretofore ordered that the property rights of the parties hereto be established as provided in said agreement of October 21, 1924, and that thereby the court ordered the defendant to pay to the plaintiff the said sum of $75.00 per month on the first day of January, 1925, and on the first day of each and every month thereafter during the lifetime of plaintiff and while she shall remain unmarried, and that by reason of such order of the court said court now has jurisdiction to punish defendant for contempt of court on his failure to make the payments in accordance with said order; 2nd: That the evidence shows that defendant is able to pay the plaintiff toward her maintenance and support the sum