*1 BERNARD, BERNARD, Aрpellant Respondent, (54 351) N. W.2d 1952) July Opinion (File filed No. 9269. Falls,
Lacey Perry, & Sioux for Plaintiff and Appellant. Jr., Fuller, Bailey, Bailey, Voorhees, and T. M. Woods & Falls, Respondent. fоr Defendant and Sioux PER In 1948 Bernard instituted CURIAM. Bernard on against an action for divorce Thereafter, cruelty. re- of extreme and their reading speсtive signed stipulation fol- counsel *2 lows: hereby stipulated to the
“It is and between di- of a Decree the above entitled that in the event action granted plaintiff action in the above entitled vorce is to the support plaintiff pay to the defendant subject per month, to to maintenance, $80.00 the sum of and thе further reserving Court, order above named right apply himself said for modification the to Court * * * payment. termination of said agreed stipulated “It that in the event is further and stipulation approval named this Court, meets with the of the above De- embodied in
the thereof shall be granted plaintiff in sаid action.” cree of divorce to be entered in December which awarded cruelty of the husband divorce to because having read and considered the wife recited “and the Court Stipulation the in settlement of support and the as the and maintenance of the Defendаnt attorney meeting Stipulation of her fees and said approval adjudged Court,” and and ordered pay Bernard, Plaintiff, the and decreed “that Bernard, defendant, month $80.00 the the sum of commencing Judgment and Decree and with the date of this sup- continuing Court, until further Order of this the port of the Defendant”. designated plaintiff,
In hereinafter March the requiring procured defendant, husband, the an order the why judg- show the we shall call the cause whom by striking not mоdified therefrom the di- ment should be why support, pay the husband should not rection obligation accruing payments of on or relieved the hearing Fоllowing subsequent 1951. on affida- to March testimony judg- modified oral the trial court vits and pay require the husband to month to ment so as to day March, until the 1st the furthеr order wife after the the court. appealed. the husband has He From this order (1) having been the hus- that: the divorce contends jurisdic- exceеded its of the wife the court for the fault band payments directing in tion (2) valid, the is the decree direction of if the impelled more sub- evidence revealed circumstances monthly payment. modification stantial argues husband first contention Under monthly payment to the wife to make of the dеcree direction reason have been stricken should commonly called ali- power mony is award what of the court to statutory ori- dеcreeing absolute divorce an only provide gin, an allowance for such our statutes of the husband. a divorce when urges response thаt a to' hold us the wife powers within such circumstances courts. *3 recognized power generally
It is permanent with a de to the wife connection allowance a marriagе absolutely dissolving must be drawn a cree power either the ecclesias unknown to was statute. Such page C.J.S., Divorce, § 228 law. 27 or common tical Nelson, Divorce, 513; 2 Annul Am.Jur., § Divorce and 17 holding in ment, 14.11. was our Warne § 2d Ed. Meile, in Meile v. Warne, D. 156 N.W. 36 S. 453. After an extensive review 15 N.W.2d D.S. background of divorce we law аuthorities receding perceive for from that view. no sound reason controlling 14.0726, statute, reads: The SDC of the hus- for an offense “Where divorcе may compel provide main- band, him to court marriage, make and to such the children of the tenance of support during allowance to the wife suitable may just, period, hav- deem as the court life or for shorter parties represented; ing regard to the circumstances of the may from time to time its orders in and the court respects. these granted either hus-
“Where a divorce is power in such action have full band or the courts shall belonging property equitable make an division property both, the title to such is in the either whether making or the wife. In such division namе of the husband regard equity property for court shall have parties.” the circumstances permanent power payment of to direсt the
alimony paragraph of is drawn from the first wife foregoing reviewing di the vorce on the statute. a decree of absolute cruelty wife, with, dealing Baron, D. 71 S. 28 N.W.2d Baron power, said, we “Because the divorce described power not in fault of the Was interpreta voked.” have received the same Like statutes Glynn Everett, other Everett v. Cal. tion in states. Glynn, Annotation 82 A.L.R. 8 N. D. N.W. 594. Cf. and hold that the court was 539. We adhere to that view payment of to the wife without under the facts revealed that the to direct the It this record. is not claimed any parties property or that were owned facts upon before the court which called to make an it to exert the property pro division paragraph quoted visions of thе second of SDC 14.0726 supra. requirement question then arises as to whether the monthly payments stipula provided
for
tion
alimony
to the wife
in the
apрropriately
not as an
but rather as an
agreement.
It
under their own
practice, pursuant to the terms of a con
is not uncommon
tract,
whiсh
to include
decree for divorce directions
in.
Glynn,
Glynn
supra;
otherwise would be without warrant.
*4
Parker,
478,
447;
Parker v.
225 P.
193 Cal.
Johnson
John
Cal.App.
son,
North,
283,
902;
285 P.
North v.
339 Mo.
McKinney
582,
1061;
109 A.L.R.
v. Mc
S.W.2d
Kinney,
Emerson,
152 Kan.
103 P.2d
Emerson
Markbreit, Adm’r,
120Md.
A.
and Hassaurek v.
appear
68 Ohio
Insofar as mоnthly they payment attempt $80 terminate the or power it to vest the court with lacks the law. This litigants Garner, do. See Garner 182 Or. cannot Glynn Glynn, supra. part 189 P.2d This to determine the contract undertakes to authorize the court payable to wife under circumstances existing parties agreed tо different than those when the $80 month. in allowance could be made irrespective agreement parties. ostensibly a modification madе the court under a flowing agreement justifiably from the cannot distinguished alimony; held from and as we have alimony in this the law does not sanction important part this case. With agreement' failing, agree- the whole incongruous give ment becomes in the divorce decree. To part stipúlation provides effect to that that only relating $80 month and hold invalid that modification or termination of the would be agreement parties. to make a new respondents argued While have that the husband deny liability estopped stipu should be under his his own satisfactory authority lation, no has been cited and we know justify application of none that would here the doc estoppel. nullify Estoppel holding trine of would agreement give сannot or consent valid ity to an invalid because it was without jurisdiction. supra, Garner, Garner v. and authorities cited. appellant’s motion to strike the decree the provisions granted. controversial should have been The or- der of the circuit court is reversed and the cause rеmanded original by deleting with directions amend the decree monthly relating payments. SICKEL, J, ROBERTS, P. RUDOLPH LEE- DOM, JJ., concur. (dissenting).
SMITH, J. I am in the accord cofirt, of the trial I views therefore dissent.