Opinion
No. 34592.
Filed July 17, 1959.
1. Appeal and Error. Where a mandate of the Supreme Court makes the opinion of the court a part thereof by reference, the opinion should be examined in conjunction with the mandate to determine the nature and terms of the judgment to be entered or the action to be taken thereon. 2. Divorce. Section 42-312, R.R.S. 1943, specifically provides that the court in a divorce action retains jurisdiction of the subject matter and the parties for the enforcement or modification of a judgment for maintenance of children, and prescribes the method by which a decree for child support may be modified. 3. ___. Where a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, such payments become vested in the payee as they accrue. The courts are without authority to reduce the amounts of such accrued payments. 4. ___. In a decree granting a wife a divorce and the custody of minor children, monthly installments of alimony and support become vested as they accrue, and unpaid, past-due portions thereof are final judgments beyond the power of the court to reduce by modification of the original decree. 5. Divorce: Attorney and Client. Attorneys' fees in divorce proceedings will ordinarily be denied where there appears no reasonable justification for the position taken by the party claiming them.
APPEAL from the district court for Lancaster County: LYLE E. JACKSON, JUDGE. Affirmed in part, and in part reversed and remanded with directions.
Charles Ledwith, for appellant.
Towle, Young McManus, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an appeal by Aneita F. Ruehle from a judgment rendered by the district court for Lancaster County on a mandate issued out of this court.
Numerous pleadings were filed in the trial court which, for the purpose of a determination of this appeal, need not be considered.
In determining this appeal, we first set forth the following: The plaintiff, Aneita F. Ruehle, moved the trial court to enter judgment on the mandate of the Supreme Court of Nebraska. The case in which the mandate was issued out of the Supreme Court of Nebraska is Ruehle v. Ruehle, reported in 161 Neb. 691, 74 N.W.2d 689.
The defendant, Edward W. Ruehle, filed objections to the motion for judgment on the mandate on the ground that it would be necessary for the trial court to take evidence in compliance with the opinion of the Supreme Court, relative to what amount of money the defendant had paid out for the support of the minor child of the parties, Jo Ann Ruehle. The defendant further alleged that in addition to payments made to the clerk of the district court for Lancaster County he had paid the aggregate sum of $2,275, between 1940 and 1948, to the plaintiff for support of their daughter, or directly to the daughter, Jo Ann. The defendant prayed the court to dismiss the motion of the plaintiff for judgment on the mandate, and petitioned the court for a hearing to ascertain the amount of child support, if any, due the plaintiff.
The plaintiff filed an answer and reply to the objections of the defendant in which she alleged that if the defendant made any payments directly to the minor child of the parties between 1940 and 1948, such payments were made voluntarily, and were not made in satisfaction of any accord arrived at by the parties; that the obligation of the defendant to make payments for the support of the minor child of the parties was never suspended during the temporary absence of the minor child of the parties from the home of the plaintiff; and that there was due the plaintiff from the defendant, on account of the judgment in the plaintiff's favor for the support of the minor child of the parties, the sum of $3,397.05 with interest at 6 percent per annum on the principal sum of $2,389.28 from June 13, 1956. The prayer was for dismissal of the objections of the defendant, and that the plaintiff recover judgment against the defendant for the sum of $3,397.05, plus interest at 6 percent per annum on the principal sum of $2,389.28 from June 13, 1956, costs, and attorneys' fees.
For some reason not apparent in the record, each of the trial judges of the third judicial district disqualified himself. As a consequence, a judge of another judicial district was called in to hear the case. Trial was had and evidence taken. Judgment was rendered by the trial court as follows: "This court has reviewed the record and evidence and finds that, from February, 1942, to October, 1948, the defendant actually paid into court the sum of $30.00 per month, when, under the order of the Supreme Court, he should have paid $50.00 per month.
"In Addition to the aforesaid thirty dollar monthly payments the court finds that the defendant has actually paid to the plaintiff or to the daughter of the parties hereto for her support and maintenance, the sum of $2,313.71, and that said amount is in excess of the amount actually owing by defendant for child support herein.
"The court further finds that there is nothing due from defendant to plaintiff at this time."
The plaintiff filed a motion for new trial, which motion was overruled, and plaintiff perfected appeal to this court.
The plaintiff assigns as error that the trial court erred in allowing credit to the defendant to apply on a child support judgment requiring monthly cash payments to the clerk of the district court for Lancaster County, where the defendant had made payments of cash and had given gifts of other property to the minor child of the parties, none of which was requested or acquiesced in by, or even reached, the plaintiff, who was the owner of the judgment.
In the case of Asbra v. Dean, 160 Neb. 6, 68 N.W.2d 696, this court said: "We have held where a mandate incorporates the opinion of the court by reference, they shall be construed together in determining the meaning of the mandate." See, also, State ex rel. Johnson v. Hash, 145 Neb. 405, 16 N.W.2d 734; Master Laboratories, Inc. v. Chesnut, 157 Neb. 317, 59 N.W.2d 571; Elliott v. Gooch Feed Mill Co., 147 Neb. 612, 24 N.W.2d 561; Glissmann v. Bauermeister, 146 Neb. 197, 19 N.W.2d 43.
We make reference to the opinion in the case of Ruehle v. Ruehle, supra, as follows: "This is an action brought in the district court for Lancaster County by Edward W. Ruehle, the defendant in a divorce action brought by Aneita F. Ruehle, plaintiff therein, for the purpose of obtaining a judgment for child support rendered against him in the divorce action adjudged satisfied and released of record. The plaintiff in the divorce action, by cross-petition in the instant case, prayed for an accounting * * * for amounts payable as child support."
It appears that Aneita F. Ruehle obtained a decree of divorce from Edward W. Ruehle on May 18, 1939, and was awarded custody of their daughter Jo Ann, a minor child, until further order of the court and, in addition, the sum of $40 a month for child support to be paid to the clerk of the district court for Lancaster County on the first day of each month, to be delivered to Aneita F. Ruehle upon her receipt therefor. On November 29, 1939, Edward W. Ruehle filed a supplemental petition for modification of the original decree of divorce with reference to child support. To this petition Aneita F. Ruehle filed an answer and cross-petition requesting an increase in child support to $75 a month. A decree was entered by the trial court on February 15, 1940, finding that Edward W. Ruehle should pay child support in the amount of $50 a month commencing March 1, 1940, payable to the clerk of the district court until further order of the court.
The parties agreed that certain language in the opinion in Ruehle v. Ruehle, supra, contained on pages 693 and 696 thereof, constitutes the background for the present action. We quote therefrom: "By stipulation of the parties filed November 30, 1940, it appears that there were delinquent child support payments in the amount of $229.84 for which Aneita F. Ruehle agreed to accept $104.92 in full payment. In addition, the defendant was to pay costs in the amount of $38.79 and attorney's fees in the amount of $63, and the amount of $15 on the first day of December 1940 and on the 15th day of December 1940, and on the same dates each month thereafter. In consideration of such payments, Aneita F. Ruehle was not to issue execution, garnishment, or other process against the defendant Edward W. Ruehle as long as the payments continued. On March 1, 1941, if all the payments had been promptly paid, Aneita F. Ruehle was to release her judgment for child support for the amounts accrued, and in the event payments were continued then at the expiration of each 3 months thereafter. The stipulation provided further that in the event Edward W. Ruehle failed to make any payments as therein provided, the plaintiff Aneita F. Ruehle, at her election, might terminate the agreement forthwith and take such steps as she desired to collect child support in the amount of $50 a month for such period of time as she had last receipted for in full. The stipulation provided further: `It is not the intention of the parties to modify the decree of this court as it now stands, but that said decree shall remain in full force and effect, subject, however to this agreement between the parties.' The stipulation was dated November 28, 1940." (Emphasis supplied.)
Further quoting from the opinion: "Edward W. Ruehle testified that he made payments to the clerk of the district court which approximated $15 each 2 weeks from December 1, 1940, to June 1949; that the daughter Jo Ann lived with her mother; that in the fall of 1948 Jo Ann changed her residence by entering Wesleyan University and moving onto the campus in Johnson Hall, girls' dormitory at University Place, on November 17, 1948, and from that time on did not live with her mother; that on October 12, 1948, prior to the time Jo Ann entered Wesleyan University, he had a conversation with Jo Ann and her mother relative to Jo Ann moving from the mother's home to the school; that school had started at that time; that in the conversation had with Aneita F. Ruehle he asked her if Jo Ann had talked to her about going to Wesleyan to live in Johnson Hall, to which she replied that Jo Ann had; that he then asked her if it was agreeable for Jo Ann to move out, and received a reply that if it was Jo Ann's wish it was agreeable; and that he then asked her if Jo Ann had discussed the release of child support payments since he could not afford to pay child support in addition to paying all the expenses while Jo Ann attended the university and she replied that Jo Ann had. He further testified that he paid all of Jo Ann's expenses, tuition, board, room, sorority dues, and other items of expense, and the agreement was that he was to continue to pay child support payments into the district court until such time as it was determined whether or not Jo Ann would continue in school and be successful in her endeavors; that he paid the expenses of Jo Ann at the university and also $30 a month to the clerk of the district court until June 1949, with the understanding that Aneita F. Ruehle was to return the money paid into the clerk's office during such period of time that Jo Ann attended the university; and that Aneita F. Ruehle returned the payments in cash by giving the same to Jo Ann with instructions to return the money to her father. He further testified that in 1949 he stopped this method of making the payments upon the suggestion of Aneita F. Ruehle that it was a nuisance. During the summer of 1947 and 1948 Jo Ann worked at the Lincoln General Hospital as a nurses aid. In the fall of 1949 she entered Bryan Memorial Hospital to become a registered nurse. She continued her employment there until August 17, 1952. She was graduated from Wesleyan University in 1953. During the time she was taking training at Bryan Memorial Hospital he paid her expenses. Jo Ann subsequently married and moved to Los Angeles."
The following also appears in the opinion: "The stipulation, as appears in the instant case, in no sense modified the decree with reference to the child support, and it was so agreed by the parties as the stipulation discloses."
We went on to say in the opinion: "We are in accord that there is a complete accord and satisfaction of the child support that would have accrued or become due from and after October 12, 1948, by reason of an agreement that was far more beneficial to the interests of the daughter Jo Ann. * * *
"We conclude that there should be an accounting as to the child support payments which had accrued and were due up to October 12, 1948, with interest thereon at the legal rate, and that all credits should be given to the appellee for payments made by him for child support. The cause is remanded to the trial court for determination of the amount of child support due on this phase of the case. * * *
"For the reasons given in this opinion, the judgment of the district court is reversed and the cause remanded with directions to modify the decree in accordance with the opinion."
The mandate in Ruehle v. Ruehle, supra, commanded the district court, without delay, to proceed in conformity with the judgment and opinion of this court.
In the case of Ruehle v. Ruehle now appealed to this court, Edward W. Ruehle testified as to the amounts he was required to pay for the support of Jo Ann, the minor child of the parties, and the manner in which he was required to make such payments. He further testified that in addition to the payments of $30 a month to the clerk of the district court starting December 1, 1940, he made other payments in cash to Aneita F. Ruehle, or to his daughter Jo Ann; and that he kept a record of all payments made direct to Aneita F. Ruehle and to Jo Ann. There was introduced in evidence an account of these payments, outside of the money paid in to the office of the clerk of the district court for child support. A compilation of these figures was made by Edward W. Ruehle and received in evidence.
On cross-examination he testified that he did not ascertain how Jo Ann spent the money he gave her for Christmas shopping or on other occasions; and that there was a policy of insurance for $2,000 written by him in a company he represented, upon which he paid the premiums and in which he was designated the beneficiary. This policy was on the life of Jo Ann. He further testified to the purchase of clothes for Jo Ann, and amounts given to her at different times to spend and for entertainment.
Aneita F. Ruehle testified that Jo Ann did not bring home to her any of the amounts given to her by Edward W. Ruehle. She knew nothing about the policy of insurance on the life of Jo Ann. She did not regard the money spent by Jo Ann while shopping with Ruehle's second wife, or attendance at entertainments, as contributions for child support. She further testified that at all times between December 1, 1940, and October 12, 1948, she had maintained a home where Jo Ann either lived or could come to visit.
The following are applicable to a determination of this appeal.
Section 42-312, R.R.S. 1943, specifically provides that the court in a divorce action retains jurisdiction of the subject matter and the parties for the enforcement or modification of a judgment for maintenance of children, and prescribes the method by which a decree for child support may be modified.
Where a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, such payments become vested in the payee as they accrue. The courts are without authority to reduce the amounts of such accrued payments, and the party obligated to pay such amounts cannot satisfy the sum in whole or in part by voluntarily furnishing such things as clothes, entertainment, spending money, etc., direct to the minor or minors. See Ruehle v. Ruehle, supra. See, also, 42-318, R.R.S. 1943.
In Wassung v. Wassung, 136 Neb. 440, 286 N.W. 340, this court said: "The general rule is stated in 19 C.J. 359, as follows: `Payments exacted by the original decree of divorce become vested in the payee as they accrue, and the court, on application to modify such decree, is without authority to reduce the amounts or modify the decree with reference thereto retrospectively; the modifying decree relates to the future only and from the time of its entry.' * * *
"Where a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, contingent only upon a subsequent order of the court, marriage, or the reaching of majority, such payments become vested in the payee as they accrue. The courts of this state are without authority to reduce the amounts of such accrued payments.
"This rule is consistent with the holdings of this court with reference to alimony and child support, down to and including the case of McIlwain v. McIlwain, 135 Neb. 705, 283 N.W. 845, and Graham v. Graham, 135 Neb. 761, 284 N.W. 280." See, also, Clark v. Clark, 139 Neb. 446, 297 N.W. 661; Schrader v. Schrader, 148 Neb. 162, 26 N.W.2d 617; Sullivan v. Sullivan, 141 Neb. 779, 4 N.W.2d 919.
Ruehle v. Ruehle, supra, contains some of the above-cited authorities which were likewise applicable to the appeal lodged in this court in that case.
In the case of Finnern v. Bruner, 167 Neb. 281, 92 N.W.2d 785, this court said: "In Sullivan v. Sullivan, 141 Neb. 779, 4 N.W.2d 919, this court held that: `In a decree granting a wife a divorce and the custody of minor children, monthly installments of alimony and support become vested as they accrue, and unpaid, past-due portions thereof are final judgments beyond the power of the court to reduce by modification of the original decree.'" Schrader v. Schrader, supra, is cited, also.
In Finnern v. Bruner, supra, the court concluded that the judgment of the trial court should be reversed and the cause remanded with directions to dismiss the plaintiff's petition and render judgment in favor of the personal representative of the estate of the deceased mother for the amount of the judgment for child support which remained unpaid, with interest at 6 percent upon unpaid weekly installments thereof as they accrued prior to September 15, 1935, and upon the principal amount thereof remaining unpaid from September 15, 1935, to date, bearing in mind that interest should not be compounded in any event.
The above is the kind of judgment which should have been entered on the mandate in the case of Ruehle v. Ruehle, supra.
The plaintiff in the instant case assigns as error the failure of the trial court to rule upon the plaintiff's motion for allowance of attorneys' fees. It is apparent from the record that attorneys' fees were not allowed in the district court. We conclude that there should be no allowance of attorneys' fees.
We conclude that the judgment of the trial court should be reversed and the cause remanded with directions to render judgment in favor of the plaintiff for the amount of child support which remains unpaid, with interest at 6 percent per annum upon the unpaid installments thereof as they accrued prior to October 12, 1948, and upon the principal amount thereof remaining unpaid from such date, bearing in mind that interest shall not be compounded in any event, defendant Edward W. Ruehle to pay all costs.
For the reasons given herein, we affirm the judgment of the district court in not allowing the attorneys' fees as costs in favor of the plaintiff; and we reverse the judgment of the district court as the same relates to child support and remand the cause with directions to render judgment in conformity with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.