[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 440 This is an appeal from an order of the circuit judge dismissing contempt proceedings instituted by plaintiff against defendant. The alleged contempt was defendant's failure to make certain payments of money to plaintiff as provided in an amended decree of divorce. It is agreed that such defaulted payments total $9,810. The circuit judge refused to find defendant guilty of contempt on the ground that the provisions of the decree were in the nature of a property settlement enforceable as an ordinary money decree, but not by contempt proceedings. His holding was: "that the decree in this case contains no provision which is clearly and unequivocally for the support and maintenance of the minor children, nor does it contain any provision for payment of alimony as such to the plaintiff." Plaintiff has appealed.
Prior to November 12, 1929, these parties had separated and were then living apart from each other. On the date noted they entered into a "separation agreement." The material portions of this agreement are printed in the margin hereof.* For reference *Page 441 purposes we have italicized certain provisions. Two children were born of this marriage. At the date of the property settlement the son, Donald, was 10 years of age, and the daughter, Alice, 8. On January 7, 1930, plaintiff filed a bill for divorce. Personal service was obtained on defendant, his default for nonappearance entered, testimony taken, and a decree of divorce granted plaintiff April 18, 1930. Plaintiff has not remarried. The decree gave plaintiff "the care, custody and maintenance of said minor children;" and contained the following:
"And it is also further ordered, adjudged, and decreed, that the said Marian Sturgis pay to the said Gladys G. Sturgis the sum of One Dollar.
"And it is further ordered, adjudged and decreed that the provision made for the said Gladys G. Sturgis herein shall be in lieu of her dower in the property of her husband, the said Marian Sturgis, and in full satisfaction of all claims that she may have in any property which the said Marian Sturgis owns or may hereafter own, or in which he has or may hereafter have any interest and that he shall hereafter hold his remaining real estate free, clear and discharged from any such dower right or claims." *Page 442
This original decree made no reference to the property settlement contained in the "separation agreement," nor did the decree contain any specific provision for alimony or payments by defendant for the support and maintenance of the minor children. On May 12, 1932, having previously heard the respective parties, the court entered an amended decree in which were embodied the terms of the separation agreement of November 12, 1929; and after having so provided the amended decree concluded as follows:
"The provisions herein contained for the said Gladys G. Sturgis shall be in lieu of dower in the property of the said Marian Sturgis, and in full satisfaction of all claims that she may have in any property which the said Marian Sturgis owned or may hereafter own." *Page 443
On this appeal the two questions with which we are confronted are: (1) Does the amended decree, separate and apart from the provisions of the property settlement, award alimony to plaintiff; and (2) Does the amended decree contain a provision for the support and maintenance of the minor children which can be separated from the property settlement?
"Divorce decree may join award for alimony with award in lieu of dower, but if so awarded in lump sum, contempt for nonpayment thereof may not be adjudged." Harner v. Harner (syllabus),255 Mich. 515.
"Where a decree is entered in approval of and pursuant to a property settlement, its entire provision in that respect must be considered, and for the plaintiff to resort to contempt proceedings it must *Page 444 clearly appear that a stated allowance is made therein to her for alimony alone." Shafer v. Shafer, 257 Mich. 372.
Tested in the light of the foregoing decisions and others of like character which might be cited, we think it is clear that the property settlement embodied in the amended decree is of such a character that it is not possible to find in it a provision which is for alimony alone, as contradistinguished from the provisions for the property settlement between plaintiff and her husband. It follows that the circuit judge was clearly right in holding contempt proceedings were not available to plaintiff incident to her complaint that defendant had defaulted in payment to her of a specified sum as alimony.
"A divorce decree, which plainly states the award to be in lieu of dower and in satisfaction of property claims, is not enforceable by contempt proceedings." Belting v. Wayne CircuitJudge (syllabus), 245 Mich. 111.
But the record is different as to the payments ordered to be made to plaintiff for the support and maintenance of the minor children. In this particular we think within certain limitations it clearly and distinctly appears that a definite portion of each of the $150 monthly payments was considered and designated as the decreed contribution of defendant to be paid to plaintiff monthly towards the support and maintenance of the two minor children. The italicized portion of the property settlement embodied in the amended decree in part reads: *Page 445
"It is mutually agreed, however, that at any time both of said children shall become self-supporting and no longer dependent on first party, that then and in that event the said monthly payments [of $150 each] shall be reduced to the sum of $100. * * *
"Second party further agrees to pay all doctor, dental and medical bills for the said first party and said children incurred in each year in excess of the total sum of $100."
From the foregoing we think it clearly appears that the decree as drafted contemplated and embodied a separate and distinct provision for payment by defendant to plaintiff of $150 per month and that of this amount $50 per month was for the support and maintenance of the two minor children. And further, that there was the specific provision that in event the expense of medical or dental care for "first party and said children" in any one year exceeded $100, such excess should be paid by defendant to plaintiff. It may be noted that a claim of this latter character is made in plaintiff's present petition. Notwithstanding these provisions for the care and maintenance of the two minor children are interspersed with other provisions of the property settlement between plaintiff and defendant, we think they are by the terms of the agreement sufficiently ascertainable as distinct and separate provisions having to do alone with the support and maintenance of the minor children, and as such their nonpayment amounts to contempt of court.
"A monthly allowance decreed to a wife for the support and maintenance of a child in a suit for a divorce is `alimony' within the meaning of Act No. 230, Pub. Acts 1899 (3 Comp. Laws 1929, § 13910 [Stat. Ann. § 27.511]), authorizing the enforcement of a decree for alimony through imprisonment for *Page 446 contempt." Brown v. Brown (syllabus), 135 Mich. 141.
It is much stressed in plaintiff's brief that in the present proceedings the parties entered into a so-called stipulation of facts in the circuit court in which it was recited that the payments which defendant has failed to make were "for the support, education, and maintenance of the said minor children from the date of said decree to and including May, 1940;" and from this it is strenuously urged that plaintiff is entitled to prosecute contempt proceedings for the whole amount unpaid by defendant. With this we cannot agree. The legal effect of a decree entered cannot be altered by a stipulation of facts subsequently agreed upon by the respective parties. Instead, the decree of the court stands for an adjudication in accord with the provisions therein contained.
"Where a decree is complete and unambiguous in itself, extraneous matters cannot be resorted to for the purpose of giving it a meaning which its language, without such help, would not carry." Belting v. Wayne Circuit Judge, supra.
Nor are we in accord with the contention of defendant that the trial court was without jurisdiction to modify the terms of the original decree by subsequently entering an amended decree. As applied to a property settlement this contention would be sound, in the absence of some condition such as fraud which would justify the modification of a decree entered in consequence thereof. Stoutenburg v. Stoutenburg, 285 Mich. 505. But provisions in a decree of divorce for the care, custody and maintenance of minor children are subject to modification by an amended decree as may be required by a change of circumstances or the welfare of such minor children. See McFarlane v.McFarlane, 298 Mich. 595; Winter v. Winter, *Page 447 270 Mich. 707; and West v. West, 241 Mich. 679. We quote two of the headnotes from the latter case:
"In Michigan, husband and wife, during the pendency of a suit for divorce, may agree upon a property settlement, and, in the absence of fraud, duress, or mutual mistake, be bound thereby.
"Parents of a minor child requiring maintenance may not, by any agreement, take from the court the power, in case of divorce, to decree maintenance of the child."
The parties have stipulated that the older one of the two children continued to live with plaintiff and continued in school or college until April 15, 1940; and the younger one continued to live with plaintiff and attended school or college until May 18, 1940. Under the terms of the decree the $50 a month for the support of the children continued until the latter one of these two dates. While the stipulation discloses that from and after November, 1931, defendant paid to apply on the $150 monthly instalments $5,710, the exact dates or amounts of the respective payments do not appear. For that reason it is impossible to determine for how many of the months since November, 1931, defendant has failed to pay $50 or more under the decree. As to such defaults in making monthly payments of $50 plaintiff is entitled to prosecute the contempt proceedings. If at any time the monthly payments have been in excess of $50 per month such excess payments should be construed as applying on the $100 monthly instalments decreed for plaintiff's use, and not applied as payments of accrued monthly instalments of $50 for the support and maintenance of the minor children. Because of the inadequacy of the record before us, the case must be remanded for further consideration by the trial court and determination in accordance herewith. *Page 448
It is so ordered; but since neither of these parties has fully prevailed on this appeal, no costs will be awarded.
CHANDLER, C.J., and STARR, WIEST, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred with NORTH, J.
"SEPARATION AGREEMENT
"It is the intention of the parties hereto to make a full and complete settlement of their property and other rights, hence this agreement: * * *
"The first party [plaintiff] hereto is living and residing with the said children in the dwelling property known and described as 616 West Madison street, in the city of Ann Arbor, Michigan. Second party [defendant] hereby agrees and it is understood that the first party shall have as her sole and separate property all of the household furniture and furnishings and all personal effects now situate and being in and upon said dwelling property, and the second party does hereby convey and grant unto her all of his right, title and interest therein.
"The second party does hereby further agree that prior to date of July 1, 1930, he will purchase for and cause to be conveyed to first party, subject to certain agreements hereinafter mentioned, a dwelling property, the purchase price of which shall not exceed $9,500, except at the option of second party. It is further agreed that said dwelling property shall be selected and determined upon by the mutual agreement of the parties hereto. It is further understood and agreed that second party shall also purchase and furnish certain articles of household furnishings necessary for the furnishing of said dwelling property in addition to the household furniture and furnishings now in use in the home at present occupied by first party and the said children. It is further agreed that the second party shall pay all taxes and assessments when they shall become a lien on said property. Second party also agreed to pay all necessary fire and wind insurance premiums for the protection of said dwelling. Second party further agreed that he will pay for and provide all necessary major, general upkeep and repair items for said dwelling.
"It is further mutually agreed that should the house be sold and the money held in income investments, that the income shall be applied toward the monthly payments or toward the expenses of said children.
"In the event of the decease of the first party, it is mutually agreed that all property transferred herein or the proceeds therefrom, is to be divided equally between the above-mentioned children and they to come into possession of their share upon their twenty-third birthdays respectively.
"Second party further agrees to pay to first party the sum of $150 per month on the first day of each and every month hereafter and second party shall continue to make said payments until the said two children shall have attained the age of 16 years and also for an additional period so long as either of said children shall attend a school or college. It is mutually agreed,however, that at any time both of said children shall becomeself-supporting and no longer dependent on first party, that thenand in that event the said monthly payments shall be reduced tothe sum of $100. It is understood and agreed, however, that inthe event that the parties hereto shall be divorced, and firstparty shall remarry, that the said second party shall no longermake said monthly payments to first party and shall only beobligated to adequately pay all necessary living and schoolingexpenses for the said children.
"Second party further agrees to pay the rental for such residence property as first party and said children shall occupy prior to the purchase of the said dwelling property hereinbefore mentioned. Second party further agrees to pay all doctor, dentaland medical bills for the said first party and said childrenincurred in each year in excess of the total sum of $100. Provided, however, that in the event of the remarriage of the first party, that second party shall not be liable for such personal bills.
"It is mutually agreed that first party shall have the privilege of renting any rooms or portion of said dwelling property she may desire and shall be entitled to the income therefor in addition to other payments to be made by second party.
"Second party hereby agrees that in the event of his death before the terms of this agreement are fully carried out, that then and in that event the same shall be a charge upon his estate.
"First party hereby agrees that should the dwelling property hereinbefore mentioned be abandoned and no longer personally occupied by her, that then and in that event said property shall be sold and the proceeds of such sale shall be reinvested for the benefit of the said two children.
"It is further mutually agreed by the parties hereto in consideration of the premises that from and after date hereof neither shall owe to the other any duty whatsoever because of the existing marital relations between them and that except as herein provided, neither of said parties shall have any right, title or lien of any nature whatsoever in or to any property, either real or personal, which either of the said parties may hereafter acquire or become possessed of.
"In further consideration of the premises, the first party does hereby expressly agree that in the event that either of the parties hereto shall apply for or institute any action for divorce against the other, that no claim or demand for alimony shall be made by said first party of the second part [party?]."