121 P.2d 989 | Okla. | 1942
This is an appeal from an order modifying a judgment in a divorce proceeding. On the 8th day of September, 1939, Leonard Irvin Canada obtained a divorce from Effie Canada. Therein the court entered a judgment for the defendant for alimony in the sum of $4,600, payable $40 per month until the youngest daughter became 18 years of age and $30 per month thereafter. On the 26th day of December, *204 1939, plaintiff applied for an order modifying the decree, and on the 3rd day of May, 1940, the court reduced the judgment to $3,600 and ordered payment of $30 per month. Thereafter, on the 18th day of November, 1940, plaintiff filed a further application for modification, and on the 10th day of January, 1941, the court ordered the payments reduced to $10 per month until $3,600 had been paid.
The defendant appealed. Plaintiff has filed a motion to dismiss which is without merit. The motion is predicated upon the assumption that this is an attempt by one proceeding to vacate, modify, and reverse two judgments. The final order from which the appeal is taken was entered on January 10, 1941. The defendant saved exceptions thereto, and therefore has a right to appeal therefrom. The motion to dismiss is denied.
The evidence on the proceedings is not brought to this court. The sole question presented, aside from the motion to dismiss, is that the court was without authority to change the prior order.
We need not notice the action on the original judgment taken on the 8th day of September, 1939, further than to state that within the term the plaintiff filed a motion to modify the judgment, and we think that the defendant has overlooked the case of Nichols v. Bonaparte,
This leaves for our sole consideration the order of January 10, 1941. This order was made after the term which ended in July, 1940, and the application likewise was filed after the term, to wit, November 18, 1940.
The only cases cited by the plaintiff in support of the right to change and modify the decree are Taliaferro v. Reirdon,
Reference is made to the following cases: Dutton v. Dutton,
"Alimony allowed to a wife on a decree of divorce from the bonds of matrimony by reason of the fault or aggression of the husband, under the statute in this state, is to be based upon the circumstances of the parties at the time of the divorce, and is not to be modified by subsequent changes in these circumstances. The court has no power, on subsequent application showing circumstances thereafter arising, to increase or diminish the allowance given in the original judgment."
The rule is the same whether the husband or the wife obtains the divorce. Gilcrease v. Gilcrease, supra. In Pryor v. Pryor,
The cause is reversed and remanded, with directions to the trial court to vacate the order of January 10, 1941, and to reinstate the order of May 3, 1940.
Reversed and remanded, with directions.
WELCH, C. J., CORN, V. C. J., and OSBORN, BAYLESS, HURST, and ARNOLD, JJ., concur. RILEY, GIBSON, and DAVISON, JJ., absent.