State Ex Rel. Towne v. District Court

MR. JUSTICE ERICKSON delivered the opinion of the court. On September 6, 1935, Katherine R. Towne, respondent, sued Charles W. Towne, the relator and appellant, in the district court for Deer Lodge county for divorce, attorneys’ fees, alimony and custody of the minor daughter of the parties. While the action was pending on the demurrer filed by relator on September 7, 1935, the parties entered into an agreement for the settlement of their property rights and submitted it to the court. This instrument, hereafter called the “1935 agreement,” recited that the parties had agreed with respect to “the amount to be paid to the first party by the second party as for support for herself and the minor child of the parties hereto, with respect to other of their property rights with respect to attorneys’ fees and costs of court, and with respect to the cus *4 tody of said minor child, all subject to the approval of the above-named court.” The instrument provided that, on the contingency that a decree of divorce absolute be awarded to respondent, and subject to the approval of the court, the agreement “shall be and constitute the rights and obligations of the parties hereto in lieu of the relief sought by the party of the first part in her aforesaid action * * Paragraph 1 of the agreement provides that the respondent shall have the care, custody and control of the minor daughter. Paragraph 2 provides that the relator shall pay to the respondent the sum of $150 monthly “as and for the support and maintenance of the first party and the aforesaid minor child, * * *.” It is further provided in Paragraph 2 that in the event the respondent remarried or became possessed of an income sufficient to support herself, the obligation of the relator to pay $150 a month should terminate “and that, thereafter, obligation with respect to the support and maintenance of said minor child, Patricia, shall be determined either by mutual agreement of the parties thereto, subject to the approval of the court, or otherwise as the law shall provide.” Then follow in succeeding paragraphs provisions relative to the disposition of real and personal property of the parties. The cause was submitted to the court and decree of divorce was entered on September 7, 1935. It recited: “From the evidence so submitted the court found that plaintiff and defendant, subsequent to the filing of the complaint herein, had agreed upon a settlement of their property rights, with respect to the amount of monthly alimony to be paid to plaintiff, with respect to attorneys’ fees and costs of action, and with respect to the custody of the minor child of plaintiff and defendant, all subject to the approval of the court, * * *. Wherefore, the law and the premises considered, the court hereby approving the terms of the. settlement hereinabove referred to, it is ordered, adjudged and decreed * * * that plaintiff * * * is hereby granted a divorce absolute from defendant * * * and there is hereby awarded to her the care, custody and control of * * * *5 the minor child of plaintiff -and defendant, subject to the right of the defendant, with respect to the visitation and companionship of said minor as set ont in the agreement above-mentioned * * Except for the reference to the agreement in the preamble to the decree as set out above and the provisions in the decree itself for the custody of the minor child, the order of the court is silent as to support money for the wife and child. The minor daughter attained her majority on April 21, 1941. Relator continued to pay respondent $150 a month in accordance with the agreement until the end of the calendar year of 1941. When the December, 1941, payment was made, relator notified respondent that the payments would cease in toto as of that date. On February 9, 1942, respondent filed in the court of the first department of Silver Bow county an action upon the contract for the recovery of $300 accrued and due for the months of January and February of 1942. Attachment was issued and levied. Relator filed a motion to discharge the attachment on the ground that there was no contract for the direct payment of money and that the divorce court, the district court of Deer Lodge county, had continuing and exclusive jurisdiction of the subject matter involved. Respondent amended her complaint to include an additional $150 accrued under the alleged contract for the month of March, 1942. A writ of attachment was issued and levied in the amount claimed. Relator thereupon moved to discharge the second writ on the same ground as stated in the prior motion. Both motions filed by relator were denied on May 22, 1942, and the appeal is from the order of the court. Subsequent to the filing of the suit in February, 1942, the relator filed a motion in the original divorce action in Deer Lodge county to modify the decree as to the amount of the monthly payments. Relator contended in that motion that, since the daughter referred to in the decree had become an adult, a material change of conditions resulted, and that until modified to conform to the changed circumstances the decree was ineffective. The motion’ was heard on April 21, 1942, but no decision with respect thereto has been reached by the court. After *6 the bill of exceptions in the Silver Bow cause was settled, but before the filing of the notice of appeal, respondent began a second action in the second department of Silver Bow county for $450, accrued and due for the months of April, May and June, 1942. A writ of attachment was duly issued and levied in accordance with the complaint and affidavit. On July 11, 1942, the relator filed in this court a petition for an alternative writ of injunction on the grounds that he was being subjected to a multiplicity of actions arising from the same subject matter, depriving him of an adequate, speedy remedy at law. The order to show cause was issued by this court on July 11th. The respondent moved that the order to show cause be quashed. The appeal and the special proceeding were in this court consolidated. The relator first urges that his obligation to pay to the respondent $150 a month is not based upon a contract but upon the decree of the court in the divorce action, and, therefore, attachment will not lie. His view is that the 1935 agreement was in the nature of a stipulation of what the court might provide in its decree, and that the approval of the 1935 agreement by the court amounted to its incorporation in the decree. With this view we do not agree. The instrument clearly reveals the intention of the parties to enter into a contract respecting the amount of the support money for the wife and minor child, as well as for the settlement of the property rights. It specifically provides that the respondent accepts the provisions of the agreement in lieu of the relief sought by her original complaint. The court’s approval of the terms of the agreement was effective to make it operative by its own terms, and also as an indication that the court thought the matters therein dealt with sufficiently covered so as to obviate the necessity for provision for them in the decree itself. The court in its reference to it used language which characterized the document as an agreement or contract. It is significant to note that the court did specifically provide in the decree for the custody of the child, even though the agreement also contained a similar -provision. Such *7 contracts are recognized by our legislature in sections 5786, 5787 and 5788 of the Revised Codes of 1935, and by the reported ' decisions of this court. (Kane v. Kane, 53 Mont. 519, 165 Pac. 457; Brice v. Brice, 50 Mont. 388, 147 Pac. 164; State ex rel. Floch v. District Court, 107 Mont. 185, 81 Pac. (2d) 692.) This court has held repeatedly that such an agreement is binding upon the parties to it and regulates the rights and obligations inter sese. (Kane v. Kane, supra; Brice v. Brice, supra, and State ex rel. Floch v. District Court, supra; and see generally 17 Am. Jur. 543 to 546.) The California courts have held under fact situations similar to the ones here in question that the rights of the parties rest upon the contract and not the decree. (Schnerr v. Schnerr, 128 Cal. App. 363, 17 Pac. (2d) 749; Baxter v. Baxter, 3 Cal. App. (2d) 676, 40 Pac. (2d) 536.) In the recent case of Doig v. Palmer, 97 Utah 150, 91 Pac. (2d) 443, 444, a property settlement agreement was made which covered also the matter of custody of minor children and it was submitted to the court for its approval, but, as in this case, the terms of the agreement were not incorporated in the decree, and the court held that the rights of the parties rest upon the contract and not the decree, saying that the rights “are contractual and not decreed rights and obligations,” citing the two California cases heretofore cited, i. e., Schnerr v. Schnerr, supra, and Baxter v. Baxter, supra; and see the recent case of Lazar v. Superior Court in and for City and County of San Francisco, 16 Cal. (2d) 617, 107 Pac. (2d) 249. Relator and appellant nest urges that attachment will not lie, as the contract is not for a sum certain. As noted above, the contract provided “for support for herself [respondent] and the minor child of the parties hereto” and that the sum of $150 per month was to be paid ‘ ‘ as and for the support and maintenance of the first party and the aforesaid minor child.” It is his view that once the daughter attained majority he was no longer liable for her support. The contract is silent as to what portion of the $150 a month is to be used for the *8 support of the child and as to whether and how much the payment is to be reduced upon her attaining majority. While the contract makes provision for modification upon the remarriage of the respondent or upon her obtaining a certain income, nothing is said therein as to any modification in the amount to be paid when the daughter reached the age of majority. We must take this contract as we find it and we cannot here rewrite it. If the contract is incomplete in its failure to make provision for suitable adjustment of the monthly payment to be made upon the majority of the daughter, that is a matter that can be cured only by an appropriate action in equity for reformation or some other suitable proceeding. Unless and until such reformation is had, the contract is one for a sum certain and therefore attachment lies. (Sec. 9256, Rev. Codes 1935.) It is contended by relator and appellant that the affidavit for attachment is insufficient in that it does not set out the terms of the contract sued upon, but instead is in the words of the statute, section 9257, Revised Codes. That is all that is required. (Newell v. Whitwell, 16 Mont. 243, 40 Pac. 866; see, also, 3 Bancroft on Code Pleading & Remedies, secs. 2346, 2347.) The motion to quash the alternative writ is granted and the order of the court overruling the motion of relator to discharge the attachment is affirmed. Mr. Chief Justice Johnson and Mr. Justice Anderson concur.