Barkelew v. Barkelew

FOX, J. pro tem. This is an appeal by the defendant from a special order made after final judgment of divorce denying defendant’s motion: (1) for a nunc pro tunc order to correct the interlocutory decree; and (2) for an order declaring that under the terms of said interlocutory decree, as amended nunc pro tunc, the defendant’s duty to make monthly payments for plaintiff’s support has terminated until the further order of the court, since the plaintiff is now receiving more than $150 per month from a trust fund.

On March 14, 1931, the plaintiff filed an action for divorce. In her complaint she alleged that the parties had previously entered into a written agreement settling their property rights and that the defendant had agreed to pay her $125 per month for her support. (Payments for the support of a minor son are not here involved.) Plaintiff prayed that the property settlement agreement be approved and that defendant be ordered to pay her said sum per month. The defendant did not answer and the case was heard as a default on April 14, 1931. The minutes of the proceedings, after reciting the names of those who testified for the plaintiff, simply state: “Interlocutory Decree of Divorce is granted to the Plaintiff. ’ ’ There is no reference in the minutes to any property settlement agreement, nor is any exhibit shown to have been introduced or offered in evidence.

The interlocutory decree provided that “the property [78]settlement agreement entered into by and between the parties hereto, dated June 20th, 1927 ... is hereby approved.” It also contained the following provision: “It Is Further Ordered, Adjudged and Decreed, in conformity with the terms of said agreement, that the defendant, James T. Barkelew, pay to the plaintiff, Faye L. Barkelew, for her support and maintenance, the sum of One Hundred Twenty-five Dollars ($125.00) per month, commencing May 1st, 1931, and on the 1st day of each and every month thereafter as long as the said plaintiff shall live, or until she remarries. ...”

The final decree of divorce was entered April 25, 1932.

Under the property settlement agreement of June 20, 1927, it was contemplated that one designated parcel of property would be sold for $75,000 and the proceeds divided between the parties. It was provided, however, that pending the sale of said parcel the plaintiff would have the privilege of occupying the same and the defendant would pay the plaintiff $175 per month for her support, and that after said sale and the division of the proceeds therefrom the payments to plaintiff would be $100 per month. The said property was thereafter sold and the proceeds divided some time prior to the filing of plaintiff’s complaint. As a consequence, an additional agreement was entered into dated March 20, 1931. The latter agreement refers to the former and recites the sale of the said parcel of property and the division of the proceeds therefrom and further recites, among other things, that the return from the investment of plaintiff’s share of the proceeds of said sale had not equalled the amount the parties had anticipated when the original agreement was executed, hence the defendant agreed to pay the plaintiff an additional $25 per month, thus making the monthly payments $125.