[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 33 IN BANC.
This is an appeal from an order denying a motion to modify the divorce decree granted to Winnifred W. Phy on October 16, 1922, by the Circuit Court of Union County, in a suit originally brought against her by her husband, W.T. Phy.
On August 31, 1922, and during the course of their litigation, the plaintiff and defendant entered into a property settlement, wherein it was provided:
"That this agreement is a property settlement and alimony, shall be taken as a full and complete settlement of all property interests and alimony between the parties and neither party hereto shall be compelled to pay, nor either party hereto can recover, any more property or alimony than is as herein set out. And such property settlement and agreement of alimony shall be in full for all property rights, costs, attorney's fees, and alimony, in any suit whatsoever."
It appears from the contract that, by way of settlement the plaintiff agreed to transfer to the defendant 170 shares of stock in Hot Lake Sanatorium and to deliver to her a Chickering Baby Grand piano. He likewise promised to pay alimony as follows:
"Five hundred dollars on or before the fifth day of September, 1922, and $500 on or before the fifth *Page 34 day of October, 1922, and $100 on or before the fifth day of each and every month thereafter for a period not to exceed sixty-five months; which said payment shall not exceed an aggregate sum of $7,500; which payment of alimony shall be in lieu of all other alimony heretofore ordered by said court; provided, however, that all payments made prior to the first day of September, 1922, shall not be considered as a part of said alimony as set forth in this agreement."
On the trial of the cause the court, basing its decision upon its findings of fact and conclusions of law therein entered, granted a decree of divorce to Winnifred W. Phy upon her cross-complaint, and made a part of the decree the stipulation referred to above.
Thereafter, on the twelfth day of April, 1924, W.T. Phy, the divorced husband, filed a motion to modify the decree in so far as it related to alimony, and prayed an order of the court that such alimony be discontinued for the reason that Winnifred W. Phy had remarried. The court denied the motion, and Phy appeals to this court.
REVERSED. BROWN, J.
This case involves the right of a divorced wife who has remarried to continue to collect alimony from her former husband as provided in the decree of divorce.
"Alimony is an allowance for support, which is made upon considerations of equity and public *Page 35 policy. It is not property of the wife recoverable as debt, damages, or penalty. It is based upon the obligation, growing out of the marriage relation, that the husband must support his wife — an obligation which continues even after a legal separation without her fault." 2 Schouler, Marriage, Divorce, Separation and Domestic Relations (6 ed.), § 1754.
This court has held that maintenance and permanent alimony are synonymous terms and constitute an allowance in money, to be recovered from the one in fault for the support of the innocent party: Huffman v. Huffman, 47 Or. 610 (86 P. 593, 114 Am. St. Rep. 943).
"The remarriage of a divorced wife cuts off her right to alimony from the date of her remarriage, and alimony may be reduced to a nominal sum where the wife has remarried with a man able to support her, or retained only at a sum sufficient for support of the minor children." 2 Schouler, Marriage, Divorce, Separation and Domestic Relations (6 ed.), § 1834.
In 19 C.J. 275, 276, the editors announce the doctrine that, while a divorced wife's remarriage to another does not ipsofacto release the former husband's obligation to pay alimony, it affords a cogent reason for the court to modify or vacate a decree awarding alimony, "especially where the wife marries a man who is able to afford her a reasonable support; and the rule applies to a decree based upon and incorporating an agreement between the parties, as well as to one founded on testimony."
The effect of remarriage of the wife upon an allowance of alimony is treated as follows in 1 R.C.L., p. 950:
"Aside from its positive unseemliness, it is illogical and unreasonable that she (the divorced *Page 36 wife) should have the equivalent of an obligation for support by way of alimony from a former husband, and an obligation from a present husband for an adequate support at the same time. It is her privilege to abandon the provision made by decree of the court for her support under sanctions of the law, for another provision for maintenance which she would obtain by a second marriage, and when she has done so the law will require her to abide by her election as there is no reason why she should not do so."
See 30 A.L.R., p. 79, note; 11 Ann. Cas. 523, note; Carlton v. Carlton, 87 Fla. 460 (100 So. 745).
It is a general rule that the remarriage of a divorced wife does not of itself terminate the former husband's obligation to pay the alimony decreed: Brandt v. Brandt, 40 Or. 477 (67 P. 508); McGill v. McGill, 101 Kan. 324 (166 P. 501);Hartigan v. Hartigan, 142 Minn. 274 (171 N.W. 925); Nelson v. Nelson, 282 Mo. 412 (221 S.W. 1066); 1 R.C.L., p. 950. But, when an application is regularly made to modify the decree awarding alimony and the marriage of the divorced wife is shown, the burden of showing the circumstances to overcome the fact of marriage is placed upon the divorced wife: Brandt v. Brandt,supra; Cohen v. Cohen, 150 Cal. 99 (88 P. 267, 11 Ann. Cas. 520); Southworth v. Treadwell, 168 Mass. 511 (47 N.E. 93).
When the allowance for alimony or maintenance arises from a consideration of the restitution of property brought to the husband by the wife, the decree awarding such maintenance should be regarded as a final adjudication of the matter. But, as said by Mr. Justice WOLVERTON in speaking for *Page 37 this court in Brandt v. Brandt, 40 Or. 477, 486 (67 P. 508,510):
"Where it is made as a matter of support and maintenance merely, then the changed condition of the parties, as where the faculties of the husband have diminished, or the divorced wife has acquired other facilities or means of support, will warrant such a revision or modification, diminishing or cutting off the allowance in toto, as may seem reasonable and proper (citing numerous authorities). * * The remarriage of the wife is a persuasive circumstance, calling for an exercise of the court's discretion and authority to modify or rebate the allowance." See, also, 19 C.J. 276.
The case of Henderson v. Henderson, 37 Or. 141 (60 P. 597, 61 P. 136, 82 Am. St. Rep. 741, 48 L.R.A. 766), is relied upon by defendant in support of the ruling of the lower court. But that case is not based upon a like set of facts. The decree of the court required M.W. Henderson, defendant, to support and maintain the minor child of the marriage during his minority, and to pay to the plaintiff during the term of her natural life $150 per month. Thereafter, the defendant, basing his petition upon his inability to pay a greater sum than $75 per month, asked the court to modify the decree so as to reduce the alimony to that amount. The plaintiff, answering, averred that the defendant ought to be estopped because the parties had entered into a postnuptial agreement adjusting their property rights, under the terms of which the defendant had, for himself, his heirs, executors and administrators, in consideration of plaintiff's covenant, agreed to pay to plaintiff the sum of $150 on the fifteenth day of each month during the term of her natural life, and that, as security for *Page 38 such monthly payments, the defendant and plaintiff had joined in deeding to one Byron Z. Holmes, Block 22 in McMillan's Addition to East Portland, Oregon, to be held by him in trust for such purpose. She further asserted that in consideration of the above covenants and agreements she had relinquished all her right and interest in and to the property of the defendant, both real and personal. She averred that she had carried out the terms of her contract by executing the deed. She further averred and proved that this agreement had been made for a valuable consideration and in order to adjust and settle the property rights between the parties. Mr. Justice WOLVERTON, in rendering the decision for the court, held that a decree carrying into effect the provisions of an agreement entered into between a husband and wife, by which the wife, in consideration of releasing all interest in certain real and personal property, is to receive $150 per month for her support during her life after divorce caused by the husband's misconduct, cannot afterward be modified by the court without the consent of both parties thereto.
The case of Southworth v. Treadwell, supra, is in point. In that case the wife was granted a divorce on June 5, 1890, on the ground of desertion. The parties agreed that alimony at the rate of $150 per month should be allowed the wife, and on June 21, 1890, a written agreement to this effect was adopted as the order of the court, to be embodied in the decree absolute when such decree, if any, should be entered. On March 3, 1891, the divorce was made absolute. Upon the hearing of the husband's petition to vacate the decree awarding alimony, *Page 39 the divorced wife requested a ruling of the court that the alimony constituted a vested right which the court had no power to disturb, and that, before the petition could be maintained it was necessary to show that by her remarriage the financial condition of the wife was so improved that she no longer required the alimony. The court declined to make the requested ruling, and held that the remarriage of the divorced wife was prima facie cause for the reduction of alimony to a nominal sum. The case was appealed to the Supreme Court of Massachusetts, where it was held that the remarriage of the wife brought about a material change in her circumstances, in that it gave her the right to be supported by another man. The court further upheld the decision of the lower court in reducing the alimony to a nominal sum and in ruling that the remarriage constituted a prima facie cause for reduction of the alimony.
There is no contention here that the wife ever brought any property into the estate of her husband, or that the award of alimony or maintenance was based upon the relinquishment of any property rights. She is remarried. It is admitted that her husband is amply able to support her, and that he is supporting her. Under this state of facts, when the divorced wife elected to marry her present husband, she waived her legal right to claim support from a former husband, and the court was empowered to modify the decree so as to fit the situation: Section 514, Or. L.
The order appealed from is reversed and the decree of divorce, in so far as it relates to alimony, is modified, in this: that the payment of alimony *Page 40 accruing subsequent to the filing of the motion in the court below will be discontinued.
Neither party shall recover costs in this court.
REVERSED AND DECREE ENTERED. Rehearing denied October 23, 1925. ON PETITION FOR REHEARING. (240 P. 237.) On October 16, 1922, Winnifred W. Phy was granted a decree of divorce from W.T. Phy by the Circuit Court for Union County, Oregon, and, pursuant to a stipulation between the parties, which was filed in court and made a part of the decree, a settlement of property rights and alimony was had. On April 12, 1924, Phy petitioned the court for a modification of that provision of the decree awarding alimony to his former wife, on the ground that she had remarried. His petition was denied. He appealed to this court, and on June 16, 1925, his petition was allowed and decree modified by order of the court that the payment of alimony accruing subsequent to the filing of the motion in the court below be discontinued: See ante, p. 31 (236 P. 751). Winnifred W. Clemans, formerly Winnifred W. Phy, asks for a rehearing. *Page 41
The stipulation between the parties, of date August 31, 1922, and purporting to settle property rights and alimony, provides, among other things:
"Whereas, the parties hereto are living apart and desire to make a settlement of all matters of property and alimony between them * *,
"Now, therefore, in consideration of the premises, and in consideration of the fact that the parties hereto are living apart and will continue to live apart, it is hereby agreed by and between the parties hereto that the party of the first part will, on demand, after the execution of this agreement, assign and transfer, and have transferred upon the books of the Hot Lake Sanatorium, a corporation, * * 170 shares of stock in said Hot Lake Sanatorium, and will, within a reasonable time after demand, crate and deliver to the party of the second part, f.o.b. the cars at Hot Lake, Oregon, the Chickering baby grand piano now owned by the party of the first part at Hot Lake, Oregon, andsaid party of the first part will pay alimony to said party ofthe second part as follows: $500 on or before the fifth day of September, 1922; and $500 on or before the fifth day of October, 1922; and $100 on or before the fifth day of each and every month thereafter for a period of not to exceed 65 months, which said payment shall not exceed an aggregate sum of $7,500, which payment of alimony shall be in lieu of all other alimony heretofore ordered by said court."
The next paragraph of the stipulation provides that, in the event a divorce shall be granted to either party, then the agreement shall constitute a property settlement and settlement of alimony, "and shall be taken as a full and complete settlement of all property interests and alimony between the parties, and neither party hereto shall be compelled to pay, nor either party hereto can recover, *Page 42 any more property or alimony than is as herein set out, and such property settlement and agreement of alimony shall be in full for all property rights, costs, attorney's fees, and alimony in any suit whatsoever."
We quote the following from the petition for rehearing:
"The court's attention is called to the fact that nowhere in the record does it appear that the respondent's present husband is amply able to support her or that he is in other than very mediocre circumstances."
Now, turning to the judgment rendered in the court below, we quote an excerpt reading:
"In the fall of 1923, defendant was married to one John Doe Clemans; * * that (upon admission made at the hearing) the present husband of defendant is supporting her and is capable of supporting her."
Bearing in mind the above statement of fact in the decree relating to the ability of the defendant's husband to support her, this court, in setting aside the provision of the decree relating to alimony, followed the prevailing rule in cases of remarriage of a divorced wife. The courts have many times said:
"The divorced wife abandons the provision made for her support out of the estate of her former husband by the decree of the court, for that adequate support which she contracts for by her second marriage. It is a matter that affects her own happiness, and about which she is perfectly free and competent to make a choice. Whether she acts wisely in her election and whether * * she obtains as good or as adequate a support by her marriage as that which she abandoned, are questions about which courts can have no concern. It is a matter of her *Page 43 own voluntary election." Stillman v. Stillman, 99 Ill. 196 (39 Am. Rep. 21).
In the case of Emerson v. Emerson, 120 Md. 584 (87 A. 1033), the Supreme Court of Maryland, in an elaborate discussion of this question, wrote:
"It seems clear that when a woman remarries, the new husband has cast upon him the duty of support, and it would seem, in all reason, that the man who was performing this duty under the order of court should be relieved. Although by the divorce they are no longer husband and wife, the statute requires that the former husband should still perform the duty of support; but where another man assumes this duty of maintenance, it cannot be the intent of the law that the former obligation should remain and that a woman should thus be entitled to the same support from two men."
This is the generally accepted doctrine: See Brown v.Brown, 38 Ark. 324; Casteel v. Casteel, 38 Ark. 477;Tremper v. Tremper, 39 Cal. App. 62 (177 P. 868); Morgan v. Lowman, 80 Ill. App. 557; Hartigan v. Hartigan,145 Minn. 27 (176 N.W. 180). See, also, notes, 62 L.R.A. 975; 11 Ann. Cas. 523. For additional authorities, see cases cited in Phy v.Phy, ante, p. 31 (236 P. 751).
The petitioner calls our attention to the case of Moore v.Moore (Wyo.), 237 P. 235. There is nothing in our decision in the case at bar which is repugnant to the doctrine enunciated in that case. In fact, a review of the Moore case reveals that the cases differ widely in point of fact. In that case, Moore made application "to modify decree for alimony," on the ground that the divorced wife had remarried. The divorced wife, in her answer to the application, admitted her remarriage, *Page 44 but alleged affirmatively that "the award of $10,000 permanent alimony was based upon loans made by plaintiff to defendant during their married life." On trial the court found, among other things, that, since her marriage with Moore, the divorced wife had contributed not less than $5,000 from her own funds, and that the alimony was "in the nature * * of a settlement of the claim of plaintiff against defendant, and that therefore the said decree should not at this time be modified."
The petitioner also cites the case of Henderson v.Henderson, 37 Or. 141 (60 P. 597, 61 P. 136, 82 Am. St. Rep. 741, 48 L.R.A. 766). This case can afford her no relief. A careful study of the facts discloses that the divorced wife averred and proved that, in consideration of the husband's agreement to pay, she had relinquished all her right and interest in and to valuable property, both real and personal, thereby evidencing a valuable consideration moving from her to the divorced husband for the payments decreed.
In the case at bar there is no showing by Winnifred W. Phy that the alimony was based upon a property consideration, neither was any proof offered to that effect. Nor was there any showing made that, notwithstanding she had remarried, her circumstances were such that alimony should still be paid to her. The stipulation shows both a property and an alimony settlement, but it does not show that the alimony awarded was based upon property rights of the wife. In this jurisdiction, a decree for alimony is subject to modification by the court in which it was entered, according to the varying circumstances of the parties. *Page 45
Section 511, Or. L. enacts:
"Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made shall in all cases be entitled to the undivided third part in his or her individual right in fee of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in Section 513; and it shall be the duty of the court in all such cases to enter a decree in accordance with this provision."
Section 513 provides:
"Whenever a marriage shall be declared void or dissolved, the court shall have the power to further decree as follows: * *
"3. For the recovery of the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other."
Now, quoting from Section 514:
"At any time after a decree (divorce) is given, the court or judge thereof, upon the motion of either party, shall have power to set aside, alter, or modify so much of the decree as may provide for the * * maintenance of either party to the suit."
Under the written stipulation on file herein providing for alimony, neither party to the decree was barred from petitioning for a modification of the provision relating to maintenance, because the writing upon which the court's decree was based does not of itself establish the contention now made by petitioner that the alimony provision was the result of a property settlement. There is no contention by answer or evidence that the provision of the stipulation relating to the payment of alimony was based upon any property right. The stipulation *Page 46 did not determine the amount of alimony. It simply recited that the maximum should not exceed $7,500, and limited the period of payment to "not to exceed 65 months." It is probable that the wording of the stipulation was made, not only with knowledge of, but to conform to, the provisions of Section 514, Or. L., quoted above, which authorizes the court, upon the application of either party, to increase or decrease the amount of alimony from time to time, as required by the needs, ability and circumstances of the parties. The moving party is authorized by law to proceed by motion or petition to the court that granted the divorce.
"All relevant evidence should be received, including evidence received at the original trial. * * Furthermore, either party may introduce evidence and cross-examine witnesses." 7 Standard Encyc. of Proced., p. 845.
In his dissenting opinion, Mr. Justice BEAN quotes from Section 766, Keezer on Marriage and Divorce (2 ed.), to the effect that alimony based on agreement of the parties or on a contract will not be modified by the court. Now, turn to Section 772 of the same text-book and read:
"Generally the remarriage of a divorced wife terminates the alimony, or so much of it as does not go to the support of minor children, and this though the decree for alimony is entered by consent of the parties."
It is likewise asserted that the trial court was in a better position than is the Supreme Court to determine the facts involving the basis of the alimony agreement. We concede that, in a hearing under the usual procedure, the lower court has a much better opportunity to weigh the evidence and *Page 47 to arrive at the truth from controverted facts than has the appellate court. But, in the case at bar, the lower court based its decree awarding alimony wholly upon a stipulation made in writing, and the record of that writing is before us. The case is heard here anew upon the identical writing that was before the court below. The words of that writing, in this court as in that court, are to be given their ordinary meaning. From the language thereof, we deduce that the word "alimony" was used in its ordinary sense.
"Alimony is the allowance which the husband is compelled to pay for his wife's maintenance while she is living apart from him, or after she has been divorced. * * The law will recognize her right of support and maintenance and will make provision for her out of his income or estate. It is founded upon the marital obligation to support and maintain, and is awarded by the court in enforcement of this obligation and duty." Keezer, Marriage and Divorce (2 ed.), § 660.
Again, the author says, at Section 674:
"* * The divorce with its incidental allowance of alimony simply continues his duty beyond the decree, and compels him to perform it, but does not change its nature. The form and measure of the duty are indeed changed, but its substance remains unchanged."
The right of alimony rests upon the relation of the parties. It is the duty of the husband to support his wife. However, when she is united in marriage with another man, it becomes that man's duty to furnish her maintenance. Any other doctrine would be repugnant to public policy as announced by the courts. The award made by the decree is not a debt due the wife, but is maintenance *Page 48 prescribed and defined by law. See opinion by Mr. Justice PITNEY, in Lynde v. Lynde, 64 N.J. Eq. 736 (52 A. 694, 97 Am. St. Rep. 692, 58 L.R.A. 471), wherein the eminent jurist held that a wife's claim to permanent alimony is a personal right, and not a property right.
In the instant case, the stipulation did award the wife certain designated personal property, and that property is hers forever.
It is also asserted that we have "overruled or changed" the opinions in Henderson v. Henderson, supra, and Brandt v.Brandt, 40 Or. 477 (67 P. 508). In this the learned justice is in error. In our former opinion we cited with approval and followed the doctrine enunciated in each of the cases cited above. See Phy v. Phy, ante, p. 31 (236 P. 751).
Under the public policy of Oregon, as declared by this court, a married woman must look to that man who is her husband for support for herself. And, whenever a married woman divorces her husband and chooses another, she must look to that other, and not to the discarded one, for support for herself arising out of the marriage status. Hence, we must deny counsel's able petition for a rehearing. REHEARING DENIED.
BEAN, J., dissents.