Rape v. Lenz

*676 Main, J. This is an appeal by Eobert F. Lenz from a judgment of the superior court sustaining a writ of garnishment. No bill of exceptions or statement of facts has been brought to this court. The only question, therefore, is whether the findings support the judgment. The facts found by the trial court may be summarized as follows: August 2, 1921, Bertha Lenz brought an action for divorce against her husband Eobert F. Lenz. At this time, the parties had two minor children, Theda Lenz and George Lenz. September 1, 1921, an interlocutory decree of divorce was entered, and on March 8, 1922, a final decree, in both of which Mrs. Lenz was awarded the custody and control of the children. For their support, maintenance and education, Mr. Lenz was ordered to pay the sum of $50 per month until the children should attain the age of majority or until the further order of the court. Neither of the children have attained the age of majority, and neither the interlocutory order of divorce nor the final decree have, in any manner, been changed or modified. After the entry of the final decree, George Eape and Mr. Lenz entered into an agreement as follows: “Between George Eape and Eobert F. Lenz it is agreed: — Said Eape agrees to board, room, clothe and care for Theda and George Lenz, minors, adopted by said Eape and wife, for the sum of fifty dollars per month until the majority of said minors, and said Lenz agrees to pay said Eape for said time, the sum of $50 per month for skid support, and the education of said minors, beginning December 12, 1921. “Signed — George Eape “Eobert F. Lenz.” In connection therewith, and in consideration therefor, Mrs. Lenz agreed in writing, as follows: *677 “I agree to the above and waive the alimony and support provisions for said children in the decree in Lens v. Lens in consideration of Eobert Lenz signing the above agreement. Signed — Bertha Lenz.” By virtue of this agreement, Mr. and Mrs. Eape adopted the two minor children of Mr. and Mrs. Lenz. Subsequent to July, 1926, Mr. Lenz refused to pay the $50 per month, and an action was instituted, and judgment was obtained against him thereon in the sum of $500.. This judgment has not been satisfied, and no part thereof has been paid. Subsequent to the entry of the judgment, Mr. Lenz filed a petition in bankruptcy in the Federal court, for the express and only purpose of attempting to relieve himself of the obligation of providing for the care, maintenance and support of the minor children of himself and Mrs. Lenz. Mr. Lenz was adjudged a bankrupt, and scheduled, as liabilities, the $500 judgment above mentioned and the contract set out relative to the support of the minor children. After the discharge in bankruptcy, George Eape, the respondent, caused a writ of garnishment to be issued and served upon the Northern Pacific Eail-way Company, which company answered, showing money in its possession belonging to Mr. Lenz. It was further found, more as a conclusion than as a finding of fact, that the agreements above set out “. . . entirely relate to and are connected with the alimony of $50 per month to be paid by defendant Eobert F. Lenz to Bertha Lenz.” The question is, whether Mr. Lenz was relieved from the obligation to support his children by reason of his discharge in bankruptcy. The bankruptcy act of 1898, U. S. Stat. at Large, vol. 30, ch. 541, § 17, contained no provision that a discharge in bankruptcy should not release the bankrupt from his obligation to pay alimony or maintenance and sup *678 port for Ms cMldren. Under that act, it was held that alimony was not a liability which conld be scheduled in the bankruptcy proceeding and from which the decree therein would discharge the bankrupt from liability, this on the ground that such an obligation was not founded upon contract, but on a natural and legal duty. Audubon v. Shufeldt, 181 U. S. 575. In 1903 U. S. Stat. at Large, vol. 32, part 1, ch. 487, § 5, the prior act was amended, and it was there provided that a discharge in bankruptcy should not release the bankrupt “. . . for alimony due or to become due, or for maintenance or support of wife or child.” Here is an express provision that a discharge in bankruptcy does not release the bankrupt from Ms obligation to support his minor children. Were it not for the contract above set out, made between Mr. Rape and Mr. Lenz, which was approved by Mrs. Lenz, and the adoption of the children by Mr. and Mrs. Rape, the act of Congress, by its express provision, would apply and control. The question then arises, whether Mr. Lenz had a right to schedule his obligation under the above contract as a liability in the bankruptcy proceeding and be discharged therefrom. Prom the facts stated, it appears that the consideration for the contract was, first, on the part of Mr. and Mrs. Rape, that they would adopt the children and, second, on the part of Mrs. Lenz, that she would waive the provisions of the divorce decree with reference to the maintenance and support of the children as a consideration for the contract. It thus appears that the obligation to pay for the maintenance and support of the children, as provided in the contract, is immediately and directly connected, not only with the adoption, but with the decree in the divorce action providing for $50 a month for *679 their support and maintenance. Under these circumstances, it seems to us that the debt created by the contract is not one which could be discharged in the bankruptcy proceeding. For the purpose of protecting a divorced wife in her right to alimony, and children in their right to maintenance and support, a liberal view of the bankruptcy act has been taken by the Federal supreme court. In Dunbar v. Dunbar, 190 U. S. 340, the husband, after obtaining a divorce from his wife, she not opposing the decree, executed and delivered a written contract by which he agreed to pay her a specified sum, annually, for her support during her life or so long as she remained unmarried. Subsequently the husband was adjudged a bankrupt and discharged. The wife sued for the amounts accrued upon the contract prior to the discharge. The court made these observations: “Had the provisions of this contract, so far as contracting to pay money for the support of his wife is concerned, been embodied in the decree of divorce which the husband obtained from' his wife in Ohio on the ground of desertion, the liability of the husband to pay the amount as alimony, notwithstanding his discharge in bankruptcy, cannot be doubted. Audubon v. Shufeldt, 181 U. S. 575. We are not by any means clear that the same principle ought not to govern a contract of this nature when, although the judgment of divorce is silent upon the subject, it is plain that the contract was made with reference to the obligations of the husband to aid in the support of his wife, notwithstanding the decree. The facts appearing in this record do not show a case of any moral delinquency on the part of the wife, and the contract, considering the circumstances, might possibly be held to take the place of an order or judgment of the court for the payment of the amount, as in the nature of a decree for alimony. We do not find it necessary, however, to decide that question in this case, because in any event *680 we think the contract as to the' support of the wife is not of such a nature as to be discharged by a discharge in bankruptcy.” Notwithstanding the fact that that case was decided upon another point, we think we are justified in quoting the views of that court which are applicable to the question now before us. What the effect of the adoption of the minor children by Mr. and Mrs. Rape would have been upon the obligation of Mr. Lenz as provided in the divorce decree for their support and maintenance, had it not been for the contract above mentioned, it is not necessary here to determine, and we express no opinion thereon. The judgment will be affirmed. Mitchell, O. J., Beals, Fullerton, French, and Millard, JJ., concur.