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738 P.2d 633

59 UtahAdv.Rep. 2

Druce v. Druce

Utah Supreme Court

Decided June 2, 1987

Utah Supreme Court · decided 1987-06-02

Cited by 2 later decisions — most recently July 2014

2 state decisions

Key passage — most relied on by later courts

“From a policy standpoint, we believe it is inappropriate to sanction a rule that would enable a party to avoid payment of accrued temporary alimony on the basis that a final order has been entered. Our cases make it clear that the statutory right to obtain temporary alimony and support payments is intended to provide an economically deprived spouse with maintenance money during the pendency of the divorce. The beneficial purpose of the statute would be defeated by permitting the party responsible for paying temporary alimony to defeat the claim by showing that a final divorce decree had been entered. Furthermore, in those jurisdictions adopting the merger rule, it would seem that such a rule would encourage unnecessary delay in the final resolution of divorce actions. Where there is an arrearage on temporary alimony or support, the party to whom the arrearage is owed would resist the entry of a final decree until the court holds a hearing and enters an order compelling payment of the arrearage. We can see no valid reason for adopting the merger rule.”

quoted by 1 later decision, including 586 So. 2d 740 - Lewis v. Lewis

Relies on Richardson v. Richardson · Holmes v. Holmes · Ex Parte Shaver

Good law ✅— No negative treatment on recordhow we know

Decided 1987-06-02

View the full empirical analysis of this case →

ZIMMERMAN, Justice:

¶1Defendant Willard Ray Druce appeals a district court ruling holding him liable for *634delinquent child support payments due his ex-wife, Vonda Druce, under a temporary order that was entered before the final divorce decree. He contends that the final decree superseded the temporary support order, and because the final decree did not require that he pay the amounts that were delinquent at that time, the trial court erred when it later entered a judgment for the amount of the delinquent payments. We affirm.

¶2In July of 1980, plaintiff Vonda Druce filed for divorce. Several weeks later, the district court entered a temporary order awarding her child support payments of $200 per month pending a final divorce. In November of the same year, the court entered a final divorce decree awarding plaintiff $250 per month as permanent child support. At that time, defendant was $1,204 in arrears in his temporary support payments. The divorce decree is silent as to those amounts. In January of 1984, the court ordered defendant to pay plaintiff almost $5,000 in overdue child support payments, $1,204 of which represented the delinquent temporary support payments and the remainder of which represented amounts delinquent under the final decree.

¶3On appeal, defendant asserts that the temporary support order merged into the final decree and, since the final decree is silent regarding the delinquent temporary support payments, the doctrine of res judi-cata precludes plaintiff from seeking any unpaid amounts that accrued under the temporary order. He argues that this is not a case where the final decree is merely silent about the question of child support; instead, the final decree implicitly addressed the issue by requiring only prospective payment of $250 per month as child support. Under such circumstances, plaintiff should be barred from recovering amounts implicitly considered and denied in the divorce decree.

¶4We recognize that a few courts have adopted the rule advocated by defendant. See, e.g., Richardson v. Richardson, 218 Minn. 42, 44-45, 15 N.W.2d 127, 128-29 (1944); Holmes v. Holmes, 66 Wyo. 317, 339-43, 211 P.2d 946, 955-57 (1949). However, we disagree with those decisions. A rule that denies recovery of accrued unpaid obligations under a temporary order unless they are expressly preserved by the final order is “entirely senseless ... [because] it rewards the recalcitrant husband for noncompliance with the court’s order by excusing him from payment of arrears.” H. Clark, Law of Domestic Relations, § 14.2, at 428 (1968). Also, such a rule may discourage final resolution of divorce actions because “the party to whom the arrearage is owed would resist entry of a final decree until the court holds a hearing and enters an order compelling payment of the arrear-age.” Prather v. Prather, 305 S.E.2d 304, 310 (W.Va.1988).

¶5We prefer to adopt the opposing rule, which appears to have gained widespread support. See, e.g., Bork v. Richardson, 289 N.W.2d 622, 625 (Iowa 1980); Button v. Button, 222 A.2d 245, 247 (Me.1966); In re Marriage of Warren, 31 Or.App. 213, 570 P.2d 104, 106-07 (1977); Ex parte Shaver, 597 S.W.2d 498, 500 (Tex.Civ.App.1980); Prather v. Prather, 305 S.E.2d at 310. We therefore hold that payments that become due and payable under a temporary order may be reduced to judgment after entry of the final decree, despite the failure of that decree to expressly preserve them.1

¶6Affirmed.

HALL, C.J., DURHAM, J., and GREGORY K. ORME, Court of Appeals Judge, concur.HOWE, J., dissents.STEWART, Associate Chief Justice, does not participate herein; ORME, Court of Appeals Judge, sat.

¶7. We do not have occasion here to reach the question of whether the amount of the accrued debt can be retrospectively modified by the final decree. Cf. Adams v. Adams, 593 P.2d 147, 148 (Utah 1979); Larsen v. Larsen, 561 P.2d 1077, 1079 (Utah 1977).

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