I am not in accord with the conclusion reached by Mr. Justice NORTH that we may segregate $50 per month out of the $150 monthly payments and allocate that amount as support and maintenance for minor children. To do so would not only be contrary to our previous decisions, but contrary to the agreed facts upon which this case is submitted. Stated in another way, my Brother NORTH holds that this decree requires the defendant to pay $100 per month to the plaintiff for her use, and $50 per month to the plaintiff for the support and maintenance of minor children. The only basis for this conclusion is in a sentence in the decree as follows:
"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 shall be reduced to the sum of $100."
Under the construction contended for by my brother, plaintiff would be entitled to $50 per month for support of the minor children until both of said children "shall become self-supporting and no longer dependent on first party." Such is not in accord with the apparent purport of the provision for support of minor children when read in its entirety. It is as follows:
"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 *Page 449 continue to make said payments until the said two children shallhave attained the age of 16 years and also for an additionalperiod so long as either of said children shall attend a schoolor college. 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 shall be reduced to the sum of $100."
I am of the opinion that this decree requires the defendant to pay $150 per month to the plaintiff in any event only so long as either of said children attended a school or college. If duringthat period the children were no longer dependent on first party, monthly payments should be reduced to $100. The plain import of the decree is that the requirement to pay $150 per month shall continue only so long as either of said children attend a school or college. If defendant was required to continue payments until both of said children became self-supporting, a literal construction would indicate that payments might have to continue beyond the time when one reached the age of 21 years. No such absurd construction was intended.
Another objection to the construction as now proposed is indicated in the record. The requirement to pay a monthly sum must be held to begin at the time when the agreement came into effect, November 12, 1929. (The requirement is to pay "the sum of $150 per month on the first day of each and every monthhereafter.") Plaintiff has already been overpaid, computed on the basis of $50 per month. According to plaintiff's own theory, defendant was required to pay for a period of 125 months, from November, 1929, to April, 1940, at which time plaintiff admits she no longer supported the children. It is a simple matter of mathematics that if the requirement was to pay $50 per monthfor the support and maintenance of the *Page 450 children during that time, the total would amount to the sum of $6,250. This case has been submitted on an agreed statement of facts signed by counsel for both parties and made a part of the record. It is therein agreed that the defendant has paid plaintiff during this period of time the total sum of $8,940. Obviously, this is $2,690 in excess of such a requirement, based on $50 per month. Furthermore, the agreed statement of facts expressly provides that this sum was paid for the support andmaintenance of the two minor children, and as a part of the $150 monthly installments. The facts agreed upon are:
"That defendant, Marian Sturgis, paid to the friend of the court the sum of $5,710 for the support and maintenance of thetwo minor children, being a part of the $150 monthly installments so decreed to be paid; that such payments were made by the defendant to the friend of the court from November, 1931, until the present time; that previous to November, 1931, the said defendant, Marian Sturgis, paid direct to the plaintiff, and not through the friend of the court, the sum of $3,230, which sum was a part of the $150 monthly payments decreed to be paid to the plaintiff for the support and maintenance of the minorchildren."
This stipulation is in accord with what I believe to be the legal effect of the decree. On the theory advanced by Mr. Justice NORTH, and on the record before us, plaintiff has already been overpaid for the support and maintenance of the minor children if the requirement was to pay $50 per month.
This case presents again the troublesome question, when is a provision in a decree of divorce to be considered (1) alimony, or (2) in lieu of dower and property rights, or (3) for support of minor children. Since the amended decree in the instant case was entered, this court has cleared up this question, by *Page 451 requiring that provisions for property settlement, or for alimony or support of minor children or both, must be embodied in separate and distinct paragraphs, each properly labeled. Court Rule No. 51, § 5 (1933), as added effective January 1, 1939.
In the case at bar, the original decree of divorce entered in 1930 made no express provision for payment of alimony. It ordered the defendant to pay plaintiff $1, 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."
An amended decree bearing date October 24, 1931, was thereafter entered inculcating therein by reference a certain separation agreement which had been entered into by the parties in 1929. The hearing on this amended decree was participated in by both of the parties, the decree was not appealed, and the authority of the court to enter it is not now questioned. This prevents any challenge in this proceeding of the regularity of its entry.Spence v. Spence, 290 Mich. 98 (124 A.L.R. 141). Otherwise, the amended decree would be without effect. Stoutenburg v.Stoutenburg, 285 Mich. 505. The separation agreement, which is thus given force by the amended decree, gives the household furniture and personal effects to the plaintiff, requires defendant to purchase and cause to be conveyed to the plaintiff a dwelling property not to exceed $9,500, provide plaintiff with certain other additional household furnishings, pay taxes on the dwelling, maintain insurance and repairs. We must hold that at least some portion of the decree in the case at bar was in lieu of dower and *Page 452 property rights that plaintiff might have in defendant's property. Otherwise, it would not comply with statutory requirements. 3 Comp. Laws 1929, § 12766, as amended by Act No. 220, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 12766, Stat. Ann. 1941 Cum. Supp. § 25.131). Had the amount awarded in the amended decree for that purpose been only $1 (as in the original decree), it would have been a sufficient compliance with the statute and, if properly indicated, would have sufficed to separate the provision in lieu of dower and property rights from an award for alimony or support of minor children. In the instant case, the other provisions (aside from payment of $150 per month for support and maintenance of minor children) were intended to be provisions in lieu of dower and property rights. Under our repeated holdings, such provisions cannot be enforced by contempt proceedings and are enforceable only by proceedings in a court of law. McFarlane v. McFarlane, 298 Mich. 595; Binkow v.Binkow, 298 Mich. 609. In Spence v. Spence, supra, we held that nonperformance of a provision in a written agreement embodied in a decree of divorce which related to monthly payments was punishable by contempt proceedings, while other provisions embodied in the same decree were held to be matters of property settlement not enforceable in that manner. In Tessmer v.Tessmer, 261 Mich. 681, we held that where a provision in a divorce decree did not tie release of dower to weekly payments to the wife so directly and surely that strict construction was imperative, such provisions for weekly payments might be enforced by contempt proceedings.
Unless we decide that the requirement to pay $150 per month is separable from the other provisions made for plaintiff, she cannot prosecute contempt *Page 453 proceedings for collection of any unpaid sum under this decree. The amended decree itself declares that the provision made for plaintiff (in the property settlement and amended decree) "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."
In Belting v. Wayne Circuit Judge, 245 Mich. 111, a similar provision was made in pursuance of a property settlement. We there said:
"This decree is complete and unambiguous. It plainly declares the award to be in lieu of dower and in satisfaction of property claims. It is not a decree for alimony. Execution can be decreed upon the award, and contempt proceedings will not lie for its enforcement."
In Harner v. Harner, 255 Mich. 515, the original decree directed the payment of a certain sum but failed to state whether the same was for dower or for alimony. Subsequently this failure to comply with the statutory provision above referred to was apparently discovered and the parties filed a signed stipulation and an amended decree was entered designating the payment as permanent alimony and in lieu of dower. In contempt proceedings to enforce payment, this court pointed out that the amended decree failed to designate what part of the sum constituted an award for dower, and said:
"The court adjudged defendant in contempt `for his failure to pay the sum of $10,000 alimony,' under the amended decree. This was error. The decree as amended, even if held valid, constituted the $10,000 award not alone alimony but also an award in lieu of dower. Such awards may be joined, but, if so allowed in a lump sum, contempt for nonpayment of such sum may not be adjudged." *Page 454
In Shafer v. Shafer, 257 Mich. 372, quoting from syllabi, this court held:
"For wife to resort to contempt proceedings to enforce payment of alimony awarded in divorce decree, it must clearly appear that stated allowance is made therein for alimony alone.
"Where divorce decree provided for payment by husband of certain sum weekly `as and for permanent alimony, release of dower, * * * and property settlement,' wife is not entitled to enforce payment thereof by contempt proceedings, since amount awarded for alimony in said decree is not determinable."
In Peden v. Peden, 259 Mich. 559, there was a settlement of property matters and a decree entered that plaintiff pay defendant the sum of $150 per month for a definite period and until the further order of the court. This court said:
"The award of $150 a month for five years thus included not alone alimony but was an award in lieu of dower.
"`Such awards may be joined, but, if so allowed in a lump sum, contempt for nonpayment of such sum may not be adjudged.'Harner v. Harner, 255 Mich. 515.
"This proceeding was originally instituted by attachment, whereupon defendant, in attachment, who was plaintiff in the original case, filed an answer to the same and a petition for a modification of the original decree. Under the original decree, plaintiff in the original case, who was made defendant in the attachment proceeding, may not be punished for contempt. For allthat appears in the original decree, the payments conceded tohave been made thereon may have been in full for alimony, and theamount unpaid the amount awarded for a release of dower interestof defendant." *Page 455
In Winter v. Winter, 270 Mich. 707, Mr. Justice EDWARD M. SHARPE, after pointing out that the decree in the case at bar was concerned chiefly with the property settlement, concluded:
"In Harner v. Harner, 255 Mich. 515, we held that a divorce decree may join an award for alimony with an award in lieu of dower, but if so awarded in a lump sum, contempt for nonpayment thereof may not be adjudged. Under the terms of the decree in the instant case, contempt proceedings would not lie, and the decree not being a money decree is not subject to amendment."
This court has had the question before us for decision in two recent cases. In McFarlane v. McFarlane (September, 1941),supra, we had before us for consideration a decree ordering payment to the plaintiff of a certain sum at the rate of $10 per week. The decree ordered that the provision thus made was in lieu of her dower in the property of the defendant and in full satisfaction of all claims she might then or thereafter have in any property of the husband (identical with the provisions in the amended decree at bar). We there held that the amount decreed in lieu of dower and property rights was immaterial, that the full amount might be awarded for either purpose, but that the decree under consideration expressly provided for money to be paid in lieu of dower and other property rights, and, therefore, was a debt enforceable only by suit brought to obtain a judgment.
See, also, Binkow v. Binkow (September, 1941), supra.
As applied to the case at bar, the conclusion to be drawn from the foregoing cases is this: No part of the $150 monthly payment can be considered in lieu of dower or property rights. It must be considered *Page 456 in its entirety either (1) as alimony, or (2) for support and maintenance of minor children. It may be conceded that, under our holding in West v. West, 241 Mich. 679, there is a distinction between an award of alimony (so-called) and an award for support and maintenance of minor children. In the WestCase, the decree provided "The question of support for the minor child has not come before the court as yet." Under these circumstances, Mr. Justice WIEST, writing for the court, said:
"In this State, 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. But as parents of a minor child requiring maintenance, husband and wife cannot, by any agreement, take from the court the power, in case of divorce, to decree maintenance of the child. Divorce in this jurisdiction rests upon statutory provisions, and the statute allows the awarding of alimony to the wife upon dissolution of the marriage. The awarding of alimony is a statutory power; the maintenance of a child is a common-law obligation resting upon the father and enforced in a divorce decree, under power conferred by statute. Alimony is the substitute for the common-law right of marital support. Care and maintenance for the minor child is not a substitute for the common-law obligation of the father to support his child but an enforcement thereof in case of divorce. Defendant, as father of the child, is under common-law obligation to support his child. The divorce statute relative to the custody and maintenance of children of the parties is in recognition of the common-law obligation resting upon the father and leaves it to the court to prescribe the amount to be paid by the father for such purpose. The purpose is to assure support of the child, and, as long as the need exists, the obligation and power remain. Maintenance of a child is in no sense alimony, for alimony is a matter between *Page 457 husband and wife, while maintenance of a child rests upon the paternal relation."
If, in the case at bar, we must conclude that there was a provision made for support and maintenance of minor children (which I believe was obviously the plain import of the decree), we must be held to the conclusion that the entire $150 per month was a provision for support and maintenance of minor children. A conclusion that part of this monthly payment was "alimony" would do violence to the opinions of this court referred to above, and others of like import, as well as being contrary to the agreed facts.
In view of the express language in the amended decree, I cannot read into it, as does my Brother NORTH, that only a portion of each $150 monthly payment should be considered as the contribution of defendant to be paid to plaintiff toward the support and maintenance of the minor children. The only ground for such conclusion is in the statement that when both of the children shall become self-supporting, the monthly payments shall be reduced to $100. Under this construction, plaintiff might possibly be entitled to receive $100 per month indefinitely (unless she remarried), although the express provision in the decree is that defendant shall pay plaintiff $150 per month until the children become 16, or as long as they attend school or college. The entire sum must be held to be for the support and maintenance of the children, until terminated as provided for in the decree.
The inescapable conclusion, in accord with the agreed facts and our previous decisions, is that the requirement to pay $150 per month is in its entirety a provision for the support and maintenance of the two minor children until they shall have attained the age of 16 years, and for an additional period so long as either of them shall attend school or college. A decree *Page 458 should be entered setting aside the order entered by the court below dismissing the contempt proceedings, and remanding the case for proofs in regard to the length of time between the effective date of the agreement (November 12, 1929) and the termination of said requirement in accordance herewith. Defendant should have credit for the amounts paid by him during that time as a part of the $150 monthly requirement. Plaintiff should have costs.