Barnett, Charles Edward

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Volume 67 Issue 3 Article 11 April 1965 Divorce--Merger of Seperation Agreement into Divorce Decree Charles Edward Barnett West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Family Law Commons Recommended Citation Charles E. Barnett, Divorce--Merger of Seperation Agreement into Divorce Decree, 67 W. Va. L. Rev. (1965). Available at: https://researchrepository.wvu.edu/wvlr/vol67/iss3/11 This Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. CASE COMMENTSor innocence. Stevenson v. Boles, supra; State v. Goyet, 119 Vt.167, 132 A.2d 623 (1957).The conclusion that such confession should not be admitted asevidence seems hard to escape when considered in light of the factthat such an accused has been denied advice of counsel and theright to be properly charged. When both of these abuses combineto produce incriminating statements, voluntary or involuntary, thesubsequent use of such evidence should be prohibited. Such a con-clusion was recognized even before Escobedo v. Illinois, supra,when the Chief Justice and three other members of the Courtdissented to a conviction based on a voluntary confession elicitedfrom a "suspect" who had been denied the assistance of counsel.Crooker v. California, 357 U.S. 433 (1958).The fact that the United States Supreme Court has had to dealwith this issue so frequently makes a new ruling in this area almostinevitable. It seems that the federal courts have been trying toallow the states to solve this problem for themselves without makinga sweeping policy ruling. The ideal way for the states to do thiswould be to find more unlawfully obtained confessions involuntarybecause of the psycological pressures which are surely being exertedon a suspect when he is held for days without counsel, arraignment,or proper treatment. The tendency now is in a direction whichmay even go farther than the comparable Escobedo v. Illinois,supra; the ultimate effect of this may well produce the eliminationof any interrogation whatsoever before counsel is provided andproper arraignment given.Dennis Raymond LewisDivorce-Merger of Separation Agreement intoDivorce DecreeD grossly misrepresented the value of his assets to induce Pto accept a relatively small lump sum payment as a propertysettlement and for her waiver of future support payments. P sub-sequently obtained a divorce and the separation agreement wasincorporated into the decree. There was no judicial inquiry as tothe fairness or adequacy of the agreement. P later learned of thehusband's fraud, brought an action of deceit and recovered judg-196511Barnett: Divorce--Merger of Seperation Agreement into Divorce DecreeDisseminated by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWment. Held, affirmed. Under Kansas law, incorporation of a separa-tion agreement into a divorce decree does not merge the contractinto the decree so as to preclude a future action on the contract,unless the decree contains clear and unequivocal language requir-ing that conclusion. Furthermore, this was not an action on thecontract itself, but was in tort to recover damages flowing fromD's fraud. One judge dissented, reasoning that under the particularfact situation, the contract had merged into the decree, and thatrelief from D's fraud should be left to the court in which it hadbeen practiced. Hood v. Hood, 335 F.2d 585 (10th Cir. 1964).The principal case illustrates the problem which confronts thecourts after entry of a final divorce decree which makes refer-ence to or incorporates a separation agreement. The question ofwhether the agreement is merged in the decree so that it loses itsidentity as a contract is important. If a merger results, a suitcan no longer be brought on the contract, and the rights and dutiesof the parties are regulated solely by the terms of the decree.Simpson v. Superior Court, 87 Ariz. 350, 351 P.2d 179 (1960).The question of whether the contract terms are a part of the decree,enforceable by contempt proceedings, is likewise important. If amerger does not occur, it is possible to resort to either the agreementor the decree, and sometimes to both. Hettich v. Hettich, 304 N.Y.8, 105 N.E.2d 601 (1952); Goldman v. Goldman, 282 N.Y. 296, 26N.E.2d 265 (1940). However, where a party has concurrent reme-dies under a property settlement and a divorce decree, paymentsmade under one must be credited to the amount due under theother. Roberts v. Roberts, 83 Cal. App. 345, 256 Pac. 826 (1927).Whether a merger occurs affects not only the remedies availablein case of default, but also the legal status of the agreement in theevent of a subsequent attack. If the agreement does merge into thedecree, and the decree is valid, the decree is not open to collateralattack. Wallihan v. Hughes, 196 Va. 117, 82 S.E.2d 553 (1954). Thedecree is res judicata, and a party cannot avoid his obligationsunder the contract by claiming it was an illegal contract when made,or that it is voidable because procured through fraud. Howard v.Howard, 27 Cal. 2d 319, 163 P.2d 439 (1945). Such a decree isentitled to full faith and credit in every other state, and may bepleaded in bar in an action on the contract in any state court. Walli-han v. Hughes, supra.[Vol. 672West Virginia Law Review, Vol. 67, Iss. 3 [1965], Art. 11https://researchrepository.wvu.edu/wvlr/vol67/iss3/11CASE COMMENTSAnother effect of merger concerns the power of the court tomodify the support provisions of a separation agreement at a laterdate, or, what is more technically correct, the court's power tomodify the decree which incorporates the agreement. If a mergerwas affected by the incorporation, the power of the court tomodify the support arrangement will be governed by the generaldivorce laws of that jurisdiction. If merger did not occur, thecourt might still modify the alimony provisions of the decree,in those states which retain continuing jurisdiction over thesupport arrangements in divorce actions. Kosch v. Kosch, 113 So.2d 547 (Fla. 1959).The courts are not in agreement as to how and when a mergeris accomplished. It seems universally accepted that where theagreement is not presented to the court, it survives the decree.Hayes v. Hayes, 15 S.E.2d 626 (Ga. 1941). However, if the courthas continuing divorce jurisdiction, the parties cannot by contractbargain away their right to seek a change in alimony at a laterdate. Deitch v. Deitch, 149 N.Y.S.2d 353 (Sup. Ct. 1955). A con-tract also survives when it is presented to the court and is notincorporated into the decree. Hagen v. Hagen, 139 Ore. 369, 238P.2d 747 (1951). In those cases where the agreement has nospecific provisions against merger, the courts are split. The majorityhold that the agreement survives. Jenkins v. Jenkins, 225 N.C.681, 36 S.E.2d 233 (1945).One of the problems arising when the courts incorporate aseparation agreement in a divorce decree is determining whetherthe court's jurisdiction extends to the subject matter of the agree-ment. Ordinarily, in the absence of statutory authority, courts donot have the power in a divorce action to divide the propertyof the spouses. State ex rel. Hammond v. Worrell, 144 W. Va.83, 106 S.E.2d 521 (1958). Many times, though, it is difficultto determine whether the agreement which is incorporated in thedecree is a mere settlement of property rights, or a provision forthe future support of the divorcing party. The problem is furthercomplicated by the fact that some agreements which are intendedsolely as property settlements provide for distribution to be madeby periodic cash payments over an extended period of time, thusgiving them the appearance of alimony payments. In other cases,a decree represents a combination of a property settlement and asupport arrangement. Since courts do not generally have jurisdic-196513Barnett: Divorce--Merger of Seperation Agreement into Divorce DecreeDisseminated by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWtion to decree property settlements, but do have authority to decreesupport payments, it frequently becomes important to distinguishbetween the two. In those states which retain continuing jurisdic-tion after entry of the final divorce decree for purposes of alteringthe alimony payments, the courts can alter only the supportprovisions of the decree, but have no authority to alter the propertysettlement provisions. Briggs v. Briggs, 178 Ore. 193, 165 P.2d772 (1946).West Virginia's position in respect to property settlements andsupport arrangements in divorce decrees is not clear. The Codenow provides that the court may, upon decreeing a divorce, entera decree concerning the maintenance of the divorcing party, andmay from time to time thereafter revise or alter such decree.The court is also given authority to decree concerning the estateof the parties, to the extent necessary to effectuate the main-tenance decree. W. VA. CODE ch. 48, art. 2, § 15 (Michie 1961).In State ex rel. Hammond v. Worrell, supra, the court stated thatthis section did not give a divorce court authority to partition thejointly owned lands of the parties, even with their consent, andthat part of the decree which purported to do so was void, becausethe attempted partitioning was not for the purpose of effectuatinga maintenance decree. It is questionable whether this case wouldbe followed today, since subsequent to its decision, the West Vir-ginia Rules of Civil Procedure were promulgated. Rule 18 (a) ofthe West Virginia Rules now permits the parties to join as manyclaims as the trial court can conveniently hear in one action. Ithas been held under Rule 18 (a) of the Federal Rules of Civil Pro-cedure, the language of which is identical with that in West Vir-ginia's Rule 18 (a), that an action for adjudication of propertyrights could be joined with an action for divorce. Holcomb v.Holcomb, 209 F.2d 794 (D.C. Cir. 1954).State ex rel Hammond v. Worrell, supra, is apparently contra toan earlier case, State ex rel. Cooper v. Garvin, 139 W. Va. 845,82 S.E.2d 612 (1954). In the Cooper case, the court said thatW. VA. CoDE, ch. 48, art. 2, § 15 (Michie 1961), supra, gave thetrial court authority to divide the jointly owned property of theparties. In the Cooper case, the husband obtained the divorce, andit is clear from the decision that the court was speaking only of asettlement of the property rights of the parties, and not a provision[Vol. 674West Virginia Law Review, Vol. 67, Iss. 3 [1965], Art. 11https://researchrepository.wvu.edu/wvlr/vol67/iss3/11CASE COMMENTSfor maintenance. The court seemed to overlook, in the Cooper case,a series of prior cases which held that the section cited did not givethe trial court authority to make any decree concerning the estateof the parties, except to the extent necessary to effectuate the pro-visions of that section concerning maintenance. E.g., Wood v.Wood, 126 W. Va. 189, 28 S.E.2d 423 (1943).In the Cooper case, supra, the court cited W. VA. CODE ch. 48,art. 2, § 15 (Michie 1961), and overlooked section nineteen of thesame article, which would seem to give the appropriate authoriza-tion for an adjudication of pure property rights. W. VA. CoDE ch.48, art. 2, § 19 (Michie 1961) gives the court authority to awardto either of the parties whatever of his property is in the nameof, or under the control of, the other party. The court is givenpower to compel a transfer or other conveyance thereof as in otherequity cases. In State ex rel. Hammond, supra, the court citedsection nineteen, but then proceeded to explain why section fifteendid not give authority to partition lands in a divorce action. Itis true that in Wood v. Wood, supra, the court stated that W. VA.CODE ch. 48, art. 2, § 19 (Michie 1961), contemplated a restorationin kind to the party entitled thereto, and not a money recoveryfor its value. Such an interpretation would seem to unduly restrictthe statute's operation, and would frustrate what could otherwisebe a legitimate and desirable purpose, i.e., to provide for the con-venient and final adjudication of all property rights of theparties at the time of the final divorce decree. To restrict itsoperation to restoration of property in kind would forbid its use inthose frequent cases where both spouses have contributed to thepurchase of property, and the property is not susceptible of physicaldivision or partition. Since the statute gives the divorce courtauthority to compel a transfer or conveyance as in other cases ofchancery, it is arguable that this should include partitioning,either physically, by sale, or by allottment and monetary com-pensation. It should be noted, however, that the statute was notintended to give to either party the property which rightfullybelongs to the other. Any decree issued under color of W. VA.CODE ch. 48, art. 2, § 19 (Michie 1961), which would attempt toapprove by incorporation an agreement in which one of the partieswas giving the other party more than his rightful share, would bevoid to that extent. Selvy v. Selvy, 115 W. Va. 338, 177 S.E. 437(1934).1965]5Barnett: Divorce--Merger of Seperation Agreement into Divorce DecreeDisseminated by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWIn the absence of a statutory provision to the contrary, it is wellsettled that a divorce decree, rendered on personal service orits equivalent, which is silent as to alimony, is res judicata as tothat issue, and neither party can subsequently petition for alimony.This is generally held to be true even in those states with statutessimilar to West Virginia's, which gives the courts authority toalter or revise a previous alimony decree. The theory is that ifthere is no alimony decree, there is nothing to alter or revise, andthe statute cannot operate. Perry v. Perry, 202 Va. 849, 120 S.E.2d385 (1961). Even if there is at the time of the decree an agreementbetween the parties providing for the maintenance of the divorcingparty, such an agreement will not be sufficient to give the courtwith statutes similar to West Virginia's. This is true even if thecourt was fully aware of the agreement, and the agreement wasitself the reason the court made no mention of alimony in thedecree. Johnson v. Johnson, 65 How. Pr. 517, 12 Daly 232 (N.Y.1883).Suppose a West Virginia court incorporates into a divorce decreea separation agreement which provides for a lump sum paymentas a provision for the divorcing spouse's future maintenance, andexpressly provides that the spouse waives any future rights to moremoney. Is that part of the decree valid? The West Virginia casesare not entirely clear on whether a lump sum payment can be madeas a provision for future support. Ordinarily, alimony should be inperiodical payments of reasonable sums, out of the husband'sincome. Reynolds v. Reynolds, 68 W. Va. 15, 69 S.E. 381 (1910).If the court lacks authority to award alimony in gross, then itnecessarily follows that any decree incorporating an agreement be-tween the parties, providing for a lump sum alimony payment, isvoid to that extent, and the only remedy available in the eventof default would be a legal action on the contract itself. In theReynolds case, the trial court had awarded the husband's realty tothe wife for her future maintenance. The statute then in effectwas much broader than the present statute, and gave the courtauthority upon decreeing a divorce, to make such further orderas it deemed expedient concerning the estate of the parties. Evenso, the supreme court of appeals reversed, stating that generally,in the absence of special circumstances, it is error to award per-manent alimony out of the estate of the husband. The court did notenumerate the special circumstances in which a lump sum could[Vol. 676West Virginia Law Review, Vol. 67, Iss. 3 [1965], Art. 11https://researchrepository.wvu.edu/wvlr/vol67/iss3/11CASE COMMENTSbe awarded. In Tuning v. Tuning, 90 W. Va. 457, 111 S.E. 139(1922), the court recognized one of those "special circumstances."In that case, the wife had worked hard for years, and her effortshad helped pay for the farm and had helped support the family.The court stated that under those circumstances the trial courtwas justified in awarding a gross sum in lieu of alimony, payablein installments, and secured by a lien upon the husband's real estate.The court relied heavily upon the factual situation to find a "specialcircumstance," but failed to lay down any specific criteria fordetermining when a "special circumstance" exists. It would there-fore seem difficult to ever be completely certain that a West Vir-ginia divorce decree, providing for a lump sum maintenance pay-ment, would be valid insofar as the maintenance payment wasconcerned.It is obvious that the inter-relationship between post-nupitalseparation agreements and divorce decrees is often rather com-plicated, and can lead the unwary into unexpected results. It isthus incumbent upon the attorney and the court to proceed withextreme caution when approaching these situations, in order toinsure that the decree and agreement are both given the effect de-sired to the full extent permitted by law.Charles Edward BarnettFederal Courts-Diversity Jurisdiction of ProceedingBrought by a Nonresident Guardian for aNonresident Incompetent MinorThis action against Tennessee residents by a nonresident for anonresident ward was brought in a federal court sitting in Ten-nessee. P, adult citizen of Florida, brought suit as guardian of hermentally incompetent child against Ds contending that under a con-sent order, entered following a will contest, Ds were responsible forthe support of their sister, the ward. The action was dismissed inthe United States district court for lack of diversity jurisdiction.Held, reversed. The district court must look to the law of thestate in which the federal court was sitting to determine the com-petence of the guardian to bring suit in federal court, but theTennessee statute requiring appointment of a resident guardian asco-plaintiff is inapplicable to a nonresident guardian suing for a1965]7Barnett: Divorce--Merger of Seperation Agreement into Divorce DecreeDisseminated by The Research Repository @ WVU, 1965

Divorce--Merger of Seperation Agreement into Divorce Decree

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Divorce--Merger of Seperation Agreement into Divorce Decree

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