154 P. 952 | Utah | 1916
This proceeding was originally commenced in the district-court of Salt Lake County by the plaintiff, Belle Cody, against her husband J. J. Cody, the defendant, to recover judgment for separate maintenance. While the action was pending the-
The defendant has interposed a motion to dismiss the ap-' peal from that decree on the ground that the same was not
There is, however, another phase of the case which requires consideration. As already stated, the action was originally commenced for separate maintenance. Notwithstanding that fact, however, the plaintiff asked for permanent alimony in her original complaint in the following words:
“That the court assign and set apart and decree to her, as alimony for the permanent support of herself and her said minor child, such amount of the earnings of the defendant as the court in its discretion may deem just and equitable.”
When the complaint was amended by asking- for a divorce, -the prayer for permanent .alimony as given above, remained therein. . The court, in the interlocutory decree, however, did not award the plaintiff anything except the twenty dollars per month for the support of the minor child. As we have before stated, nothing is made to appear in the findings of fact or conclusions of law why no permanent alimony was allowed. In view of the fact that no permanent alimony had been allowed by the court in the interlocutory decree, and that an allowance of only twenty dollars per month had been made ■therein for the child, the plaintiff, on the 8th day of September, 1914, served and filed her notice of motion for an allow-
Defendant’s counsel contend that plaintiff’s appeal must fail for two reasons: (1) Because the bill of exceptions in which the proceedings are recorded was not settled in time; and (2) because the matter of alimony was adjudicated in the interlocutory decree. And they further assert that, because the appeal from that deeree failed for the reasons before stated, we are powerless to review the question.
The contention that the bill of exceptions which contains the matters relating to the second appeal was not settled in time cannot prevail. As to those matters the bill was settled in accordance with the requirements of our statute, and hence we are required to consider the matters therein contained in so far :as they have any bearing on the second appeal. The question of whether the matters covered by the second appeal have been
“When an interlocutory decree of divorce is made, the court may make such order in relation to the children, property, parties, and the maintenance of the parties' and children as shall be equitable: Provided, that if any of the children have attained the age of ten years and are of sound mind, such children-shall have the privilege of selecting to which of the parents they will attach themselves.
“Subsequent changes, or new orders, may be made by the court in respect to the disposal of the children or the distribution of property, as shall be reasonable and proper.”
' Her counsel contends that, inasmuch as it was made to appear in plaintiff’s application that after the interlocutory decree was entered her physical condition had changed by reason of the alleged injuries, and that the defendant, when the application was made, was earning sufficient money to authorize an allowance for alimony and an increase in the allowance originally made for the child, she was at all events entitled to have the court consider her application and make findings of ■ fact and conclusions of law thereon. That, counsel contends, is what is contemplated by the statute we have quoted above. The contention seems reasonable. The statute in terms provides thát:
Defendant’s counsel, however, contend and cite authorities to the effect that, if the court had in the interlocutory decree granted the plaintiff some amount as permanent alimony then the court could, upon a proper application and showing, have changed such an allowance; but they insist, in view that the court made no allowance whatever, that therefore there is nothing to change, and hence the only way that a modification or change in the interlocutory decree could have been effected in that regard was by timely appeal to this court, and upon a review of the evidence produced before the trial court. We think the Legislature in adopting the statute intended to, and did, enlarge the common-law powers of our courts of original ■ jurisdiction in divorce proceedings. We also think that the Legislature possessed ample power to pass such a statute. The statute must therefore be given a reasonable construction and application. Although the language is general.in permitting “subsequent changes and new orders” to be made, yet we think'it was not thereby intended that the courts could at any time review their own former orders or decrees respecting the ■ allowance of alimony, etc., and are of the opinion that what was contemplated by the statute was that where a court had : granted a decree of divorce and had aEowed alimony, or had made distribution of property and disposal of children, either party could thereafter come into court and allege that since the entry of the original decree material and permanent changes had taken place, by reason of which the allowance of alimony, as made, was either excessive or insufficient under the changed conditions, and that for that reason the existing allowance should either be increased or decreased, as- the case may be, or that the distribution of the property, of the disposal of the children, as made, should be changed so as to reflect justice between the parties.
To illustrate: Suppose that after the original decree was én- ■ tered, in which a fixed sum as permanent alimony was allowed to the wife, she, while still unmarried, should suffer serious personal injuries, or should lose her property, if she had any,
The foregoing, however, are mere illustrations,, and are not intended as fixing the limits -within which modifications of existing allowances may be made upon the proper applications and proof and under changed conditions. We have set them forth only for the purpose of showing that there are various conditions that may arise after the granting of the original decree that may require the changes or new orders spoken of in the statute respecting the original allowances made, without giving the courts the power to review their own allowances upon the facts existing at the time they were made. We do not think the Legislature intended that the courts should review
We think, therefore, the district court should have heard the evidence in support of plaintiff’s application, and should have made findings of fact and conclusions of law upon the evidence, and entered judgment accordingly. By what we have said we do not mean to be understood as holding that the court should have made an additional allowance in this case for the child, or should have made an allowance of alimony in favor of the plaintiff. Applications that are made for a change of allowance, or which require new orders, must first be submitted, considered, and passed on by the trial courts, and those courts must make findings of fact and conclusions of law thereon and enter their judgments accordingly. In that regard much must be left to their discretion, and all we have the power to do is to review their judgments, the same as in other eases.
In conclusion, we remark that the record presented to us is very incomplete, imperfect and unsatisfactory. This condition, we think, was brought about by two causes: (1) For the reason that different counsel represented plaintiff from time to time pending the proceedings; and (2) that because of appellant’s poverty she was unable to advance any money to counsel for costs and expenses, either to prosecute her case or in preparing it on appeal, all of which is made to appear from her affidavit of impeeuniosity filed in this court. Notwith
Since writing the foregoing the Chief Justice has handed me his opinion, in which he, in part, dissents from the conclusions, reached herein. I have carefully considered what is said by the Chief Justice; and have also again carefully reviewed my conclusions, and, while I agree with much that he says, yet I must confess my inability to yield to the conclusions reached by him. I can see no way to escape the positive provisions of our statute. The Chief Justice, in effect at least, concedes that if the court, in the decree, reserves the right to make changes in the matters contemplated by the statute, then perhaps such can be made in the same action upon filing a proper application therefor. In my judgment, under onr statute, the reservation exists to the same extent as though it were written into every decree. True, a proper application should be made, alid, as I have pointed out in my opinion,' the court should not attempt a review of his former decree, but should limit any change strictly to the new conditions as they are alleged in the application and established by the evidence. It is often the case that courts deem themselves better qualified to- determine what the law should be upon a given subject than the Legislature, and for that reason, by strict construction, practically ' fritter away the substance of a statute governing that subject.
As stated in the original opinion, in my judgment, our statute clearly confers powers upon the courts of original jurisdiction which they did not possess before it was adopted. These powers should not be minimized or construed away by the court of last resort, simply because that court may deem the power conferred unwise, or that by a careless court it may be too liberally applied, or even at times abused. All courts should exercise the powers conferred upon them carefully, prudently, and conscientiously, and the presumption- is that they will do so until the contrary is shown. But in view that
For the reasons stated the first appeal is dismissed, and the second is sustained. So far we are all agreed, but beyond this we are divided. For the reasons stated in my opinion I still think the order of the trial court dismissing the application to modify the decree should be reversed and the case remanded, with directions to reinstate the application and to proceed in accordance with the views expressed by me. To this my Associates, for the reasons stated by them in their separate opinions, do. not agree, • and their judgment in that regard must therefore prevail. The order of the court below dismissing the application to modify the decree, therefore, should be, and it accordingly is, affirmed.
The plaintiff, in her amended complaint, asked for a divorce on the grounds of cruelty, permanent alimony, custody of the child, and an award for its support. The defendant denied the allegations of cruelty, and alleged that the plaintiff was addicted to the use of opiates and intoxicating liquors, and was guilty of adultery and licentious conduct. The court
The defendant served and filed a notice of motion that on a specified day he would ask the court to dismiss plaintiff’s motion, on the ground that “the question of alimony has heretofore been decided and adjudged by this court by its decree herein, by which decree the said plaintiff is denied alimony. ’ ’ Both these motions came on for hearing. The court, first hearing arguments on the defendant’s motion, granted it, and dismissed plaintiff’s motion to modify the decree. Then the plaintiff, as stated by her counsel, “to make a record,” stated that he offered to show that the defendant then was, “and during the course of these proceedings, since this action was brought, had been, earning in the neighborhood of $200 a month,” and that since the decree the plaintiff had sustained personal injuries, “so that she is not able to do work which she could do prior to that, time and had been doing, ’ ’ and that “she is not able to earn wages or to do housework to any great extent, and is not able to earn a living by reason of those injuries, and by reason of injuries which she had received during the marriage, which partially incapacitated her from do
I know there are authorities which hold that a final judgment for alimony in gross is, even after the judgment becomes irreversible, subject to modification on averments and proof of changed conditions and circumstances. But I believe the better rule and weight of authority to be against such a holding. The cases bearing on the question may be found in 7 Standard Ency. of Procedure, 842; 17 Century Digest, Divorce, Section 692; 7 Decennial Digest, Divorce, Section 245; 2 Nelson on Divorce, Sections 933a and 934. Except dicta stated in them, there is nothing in Read v. Read, 28 Utah, 297, 78 Pac. 675, or Buzzo v. Buzzo, 45 Utah, 625, 148 Pac. 362, to make against this. If an order allowing alimony in gross, or specific property in lieu of all rights in and to the husband’s property, is final and res adjudicata, and not open to modification, except upon averments and proof of fraud, deceit, or misrepresentation in procuring the order, for just as cogent reasons do I think an adjudication upon issues and evidence awarding no alimony is likewise final and set at rest, and not subject to modification, except on averments and proof of fraud, deceit, or misrepresentation in procuring it.
Though it should be assumed that the order was continuing, both as to the disallowance of alimony and the award for the support of the child, still, I am of the opinion that the motion for a modification of the decree was properly dismissed, on the ground that judicial action for a modification was not prop-' erly invoked. To invoke such action it, of course, was not essential to bring a new action. The plaintiff could move for a modification in the main cause. But to do that it nevertheless was requisite to file a verified petition, or affidavit, or some pleading, setting forth the new matter, or facts constituting the changed conditions or circumstances of the parties. 7 Standard Ency. of Procedure, 844; 14 Cyc. 787. ' Nothing of that kind was filed, and until something of that kind
Though the notice should be regarded as the juridical means to invest the court with jurisdiction to modify, yet, when it is looked to, it fails in substance. So far as it relates to the award for the support of the child, it is wholly wanting in facts as to changed conditions or cireumstaneés. The only new matter stated to modify the order of disallowance of alimony is that the plaintiff, since the decree, sustained personal injuries. But it is not made to appear in
True, the court, in general terms, found the averments of the complaint to be true, and those of the answer to be untrue, from which it can be argued that the court found that the plaintiff was not guilty of the alleged misconduct in the answer. But the fact nevertheless i’emains that the court disallowed alimony; and it may be that after the court found the averments in the complaint to be true and those in the answer to be untrue, it most grievously erred in disallowing alimony. But, as before observed, if so, that ought to have been corrected by a motion for a new trial, or by an appeal. It cannot be corrected on an application for a modification of the decree, for that must proceed on the theory of new matter and changed conditions and circumstances of the parties which have arisen since the decree or upon facts fraudulently withheld. So unless it is made to appear by averments and proof
I therefore think the plaintiff’s motion to modify the decree was properly dismissed.
Comp. Laws 1907, Section 1212, so far as material here, provides:
“When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties and children as shall be equitable. * # * Subsequent changes may be made by the court in respect to the disposal of children or the distribution of property, as shall be reasonable and proper.”
While the scope and intent of that part of the section which I have italicized is not free from doubt, I am of the opinion that it can only be invoked for the purpose of procuring “changes” in the distribution of property in cases where
I therefore concur with the reasoning of, and in the conclusions reached by, the Chief Justice.