Jordan v. Jordan

appellant guilty negligence premises, negligence con- and that such respondent’s proximate cause of stituted the supported being

damage. judgment, The evidence, not be disturbed

substantial will 13-219; Lan- appeal, I.C. § Janinda (1964).

ning, 91, 390 P.2d 826 87 Idaho re- Costs to judgment is affirmed.

spondent.

KNUDSON, McQUADE, J., and Mc- C. TAYLOR, JJ., concur.

FADDEN and

394 P.2d JORDAN, Plaintiff-Respondent,

Neal A. JORDAN, Defendant-Appellant.

Jacquelin A.

No. 9455.

Supreme Court of Idaho.

July 17, 1964. pro

Jacquelin Jordan, A. se. Merrill, Pocatello, & respond-

Merrill

ent.

ant for her maintenance [Mrs. Jordan] support per the sum of $175.00 month, payable day monthly on the 6th every beginning of each and month February 6, ending 1954 and on the McFADDEN, day April, provided, how- 6th Justice. ever, upon adequate showing of appeal chapter This is the most recent inability defendant of her litigation in extended between the herself, shall, upon proper the Court formerly who were husband and wife. representation on or before 6th marriage by Their dissolved ques- April, day of reconsider the of divorce judgment entered alimony.” tion of granting being .the affirmed on appeal year. to this court the same March, 1959, Jordan, by In Jordan, 75 Idaho 275 P.2d 669. attorney, moved for a second modification Subsequent to that time there have been motion, decree. In her of the divorce motions for judgment modification of that things, sought a continua- among other she parties. filed both interests the decree tion of the awarded clarity, by will be referred to opposition Mrs. In to divorce. Jordan’s name, and the designated various motions motion, a mo- Mr. submitted Jordan by the party name of the moving and date on these Hearing was had tion to dismiss. of the motion. motions, entered an and the court court found August, in wherein the entry decree,

After of the 1954 Mr. continue motion to Mrs. Jordan, November, 1957, in submitted to Jordan’s merit, alimony payments to he without the court his modify motion to modification. for her motion and dismissed divorce, decree of to be relieved of his Mrs. effect dismissal of The of the obligation pay to per the sum of $175.00 Jordan’s terminate was to motion month to Mrs. for her maintenance Jordan appeal No April payments as of support. This 1957 motion of Mr. Mrs. dismissing the order taken from was March, culminated in an order of Jordan for modification. motion pertinent provi- which modified the Jordan’s divorce, sions of to read as litigation oc- stage this next The follows: later, Jordan, years when Mrs. three curred herself, October, 1963, plaintiff “That filed representing [Mr. Jordan] hereby required pay for Modifi- to to the defend- instrument entitled “Motion an

JQK Decree”, eighth pertains she ground cation of wherein moved to the condition “ * ^[*] * Court for modification of of her health. Decree, Modification now-existing Examination of the last seven of the * * * August as effected by Mrs. asserted reasons set forth Jordan accompany Mrs. not this motion did Jordan pertain they to discloses that each facts any affidavit, sepa- eight

with hut recited of the initial before the court at the time why granted, rate it should reasons action, hearing on issues the divorce the first of which asserts: hearing before the court at the time of Mr. motion for modifi- motion plaintiff’s “That Jordan’s [Mr. Jordan’s] cation. then-existing decree, modify insofar defendant, ability of as it contends the October, opposition Jordan], movant to secure here [Mrs. November, 1963, motion, Jordan, Mr. upon misrepre- teaching position, was based moved for a dismissal Mrs. Jor- * * * sentation, Thereafter is set ground it failed to dan’s motion on the sub-paragraphs, out five which will be modification, any state and he basis length greater discussed hereafter also moved her motion fail- to strike as opinion. upon ing right to state which claim or relief could He asserts that there be based. per- The second reason for modification is no a modifi- award tains to Mr. did an assertion that Jordan made, issue cation can be and the has been submit all information the Court judicata, determined and the cause is res relationship with concerning his his then lapsed. appeal having the time for attorneys particularly in so far as professional exchange fees concern- Jordan’s, granted The trial court Mr. By ed. the third reason she asserts failure November, 1963, motion to dismiss and fully Mr. inform as strike, appealed motion to and Mrs. Jordan policies. to certain insurance The fourth court. from that order of the pertains matters before the deal- ing Assignments does the of error grounds Six have ground. fifth The sixth asserts that made These are been Mrs. Jordan. “manipulation” reason has granting of claimed she directed to the trial court’s of enterprises. lost certain The as- is seventh Mr. motion to dismiss. It Jordan’s serts Mr. to his in refusal of submit asserted the trial court erred deter that audit, greater presented books for claiming mining questions by that her worth the part on his than submitted to judi- the court. 1963 motion was res for modification cata, “manipulations” failing “fraud”, consider what and in to she asserted and “col- extrinsic fraud. She also lateral forces”. asserts be giving not con- claims error the court’s is principal presented The issue pre- forth conditions set sideration to jurisdiction to whether the trial court had delays complains of vious motions. She October, grant motion Jordan’s presented having involved in the issues for modification. The decree had it was neces- in the trial court asserts provided per alimony for for month $175.00 presented sary again consider issues support. Subsequently her decree was in the trial hearing at the which culminated support payments modified and were these March, 1958, Throughout court’s order. terminated on Mr. motion as of assignments of error there are state- April, is the 1959. Inherent this issue fraud”, “col- asserting ments “extrinsic question possesses whether a trial forces”, “manipulations” by her lateral modification, authority, an order of husband, former to her detriment. alimony previously terminate the award of problem comparable decreed. A faced First, out, pointed these it must be Supreme re Court California and was of assignments comply error fail to of by that solved court in case of McClure appellate re- rules court that of this McClure, 584, 587, 4 Cal.2d 49 P.2d “ ** quire appellant’s an brief to contain 100 A.L.R. 1257 effect that (1935) assignments a distinct enumeration provisions under the of California Civil Assignments error not error. shall Code court was authorized Appellate 41(2) Rule be redundant.” finally terminate award an However, apparent it is amended. previously Therein the Court directed. claims error was committed Mrs. Jordan stated: it by the court when it determined trial “The on the trial court modify the authority no had Code, properly de- is section Civil alimony had initial after award continuing juris- as a scribed subsequently day on a cer- been terminated for that the court diction the reason apparent claiming It she is tain. is also empowered make under said section to perpetrated. was fraud there wife orders no tran- record before this court contains final, subject to shall but script proceedings, any previous where modification. But nor does it contain affidavits on releasing husband makes an order alimony, liability permanently areas part specially pointing to the from

437 situation, supra, that under where the thefeby an intent such indicates subject expired, no final and not time for amendment has the order shall be taken, authority modification, appeal is such an order there residual it is no 139, modify court the decree be modified under section of the trial later to Code, by terminating alimony payments. lia- See imposing Civil thereafter also: 443, Garver, bility alimony.” v. 133 for Garver 102 Ohio St. Greer, ; 31 Cal. (1921) N.E. Greer 551 was This decision of the California Court 39, App. Grenall v. (1939); 87 P.2d 388 existing provisions under the then decided 748, Grenall, Cal.App.2d 169 P.2d 896 comparable I.C. law of California (1959); 1262. Annot. 100 A.L.R. 32-706. § in its The trial court was thus correct modify authority a trial court to of November, ruling granting Mr. Jordan’s alimony concerning decree of its divorce previous motion to dismiss. The application I.C. is to be found in the alimony terminating payments order 32-706, which authorizes a modification final, having become trial court was ali- decree in the of an award of its event Jordan’s, power modify without it. Mrs. McDonald, mony. In McDonald v. October, modify having motion to Idaho 55 P.2d this Court held that dismissed, properly unnecessary been it is the initial did ali- where not award propriety the order consider mony, decree, appeal absent an from the Mr. granting trial mo- Jordan’s lapse statutory after for time tion to strike. decree, modification or amendment law a trial court is not authorized under the presented by appeal Another issue petition modify provi- to entertain a deals with the first reason set forth Mrs. of that decree. Annot: 83 sions See: October, 1963, in her motion for Jordan 1248; Mathers, A.L.R. Mathers v. 42 Idaho modification. She Mr. asserted that Jor- By analogy, 248 P. 468. situ- the same dan’s motion modification for of the applicable By is ation the case at bar. provisions alimony of the decree of divorce court, pay- of the trial all as it insofar contended she was able to se- April, appeal ments ceased after position, No teaching cure a was based order, taken from that statu- misrepresentation. She asserts that Mr. tory time for a modification or amendment application caused her teach- Jordan expired. agree thereof has We ing position to be from withdrawn the files Supreme conclusions reached school, Court impossible making it McClure, of California in McClure employment; her to secure that she had no this; proceeding knew court as to had' knowledge vitiate application submitted to on Mr. 1957 motion for modifica only one Jordan’s tion, hearing- school; keeping a loss of mind that after the given that she suffered By motion, actions. on Mr. the matter salary by of such reason asserts and continuance of awardi assignments error Mrs. an again June, such was consider heard on Mrs. failed to the trial 1959, modify ex- motion to the decree.. to constitute claims she facts which granting allegations present From in the her motion- erred to have fraud and trinsic facts, strike. it cannot be and determined but what the to dismiss motion Mr. Jordan’s effect, upon which she relies were to her position, her available understand As we at that time. contending proceedings, fraud No record the of is Mrs. Jordan either upon hearings her of these has been sub upon court practiced the on mitted to hearing allega this court showing the that the time of Mr. Jordan modification; present pre tions of her motion were not for motion 1957 Mr. Jordan’s sented to mo- the trial court. Presumptions 1963 her are- such fraud by reason of in favor granting regularity of the validity order tion, modify the motion, have action of the trial court should where the rec 1957 Mr. Jordan’s ord is silent. Hartenbower v. Mutual Ben granted. been Co.,

Life 254, Ins. 67 Idaho 175 P.2d 698. “In all provides: 9(b) I.R.C.P. As in Judy Reilly Co., stated Atkinson & mistake, circum Inc, or 757, 752, fraud 59 averments Idaho 87 P.2d 451: shall or mistake constituting fraud stances Porter, “In 574, Hill v. 38 Idaho 223 P. ”*** particularity. with be stated syllabus 4 of sec. is as follows: application “An 7(b) (1) states: I.R.C.P. “ by motion order shall be for an presumed 'It is that the decree of" hearing or during a which, unless made valid,, regular a district court is state trial, writing, shall be made in shall establishing and the burden of is. error ” therefor, grounds particularity the party alleging on the it.’ or order relief forth the set shall Mittry, 427, 429, In Baldwin v. 61 Idaho ”* * * conclusion that sought. It is our : P.2d this court stated 1963 mo- allegations contained “ * * * tion, par- be- requirements The rule would seem to to meet the fail appeal,, presumed ticularity. Assuming allegations all the that error is never on true, appellate from her not: be determined and since the court need be it cannot errors; practiced possible motion that such fraud was search the record party- showing during it is on It should recalled that burden of stated, it, greater part century, as the 19th asserting sometimes in both affirmatively country England, showing error this and in marriages burden cases.)” upon appellant, (citing by judicial were not dissolved fiat. The legislative only bodies were the authorities Marvin, Idaho also: Clear See who exercised an abso- cited. and cases therein P.2d Blackstone, lute decree of divorce. Jones’ appellant failed conclusion that It is our Wife, 594, p. Vol. Husband and show- part of the burden on her to sustain court, the trial and its ing error legislature territorial con- 1875 our dismissal is hence affirmed. ferred district courts the exclusive grant a divorce from the taken, being Subsequent appeal to the Idaho, matrimony. bonds Rev.Laws sought of the to amend one 1874-1875, p. 639. In section 7 of this act October, (cid:127)paragraphs of her motion given power the courts were to make allow- It being modification. determined wife, ances for the of a former dismissing trial court did this not err in follows: motion, purpose no be served would now ' by granting such an amendment at “In action for a n time, application and her is denied. therefor may, during pendency costs allowed. action, No the or at final hearing or after-

wards, make such order the KNUDSON, SMITH, wife, J., J., C. and of-the and the and maintenance 'THOMAS, J.,D. concur. education of the children the of mar-

riage may just, as be may and at TAYLOR, part time thereafter (concurring annually vary or modi- Justice fy order, disssenting part) . : such as the and interest and wel- fare of the children may require.” of opinion order in the that the I concur ground that In be affirmed on the dismissal 1887 this statute its was altered to present grounds (Rev.Stat. has not Idaho, 2474) established form of § as for reversal. follows: portion opinion

I from the the dissent granted “Where a divorce is for an husband, declares that court was trial offense of the including a power modify to previous without its divorce granted the husband’s alimony "terminating payments. complaint, upon separation based with- wife, years, to her (5) right for five and retain cohabitation out ” provide App.D.C. compel dower.’ him to the court children of the for the maintenance In legislative intent, his search for Justice make such and to marriage, of the Morris discussed of the old the wife for to allowance suitable ecclesiastical and courts of the courts of just, may deem court support as the (cid:127)chancery, awarding the matter of ali- circumstances of having regard to mony, at and passage, before the time respectively; and congress. noted, the act of He time, modify its may, time from respects.” (Emphasis in these orders final;. separation “The decree for a was 32-706. added.). I.C. parenthesis and adjudication alimony to some- been, payable may have extent was alimony award Assuming the final; but it was never contended or- solely rests divorce of absolute in cases alimony- maintained that the amount of fortiori, that, a legislature and with the absolutely then fixed was final con- provide maintenance for the may not clusive for time and could after- power is con- unless such a wife former modified; contrary, wards wheth- statute, we must ascertain ferred appear the authorities to be unani- en- statute, interpreted, properly er this adjudication mous to effect that the determine to hear district court titled a one, continuing was a and that for modifi- appellant’s motion the merits subject courts retained the whole under Alexander, 13 Alexander cation. control, diminishing their increasing or (1898), the L.R.A. 806 App.D.C. amount from time to> appeals confronted time, might just changed seem under congress interpreting an act of task of circumstances; changing Supreme Court which authorized without reference to the fact that the decrees might have been Columbia entire- District of ly in regard silent the reservation of award divorce absolute right them, parties, to the or either of alimony read governing statute wife. The apply thereafter to the court as follows: App.D.C. modification.” 13 at 346. ‘in provides that “Section 745 posed of, question and granted, the divorce is cases where a alimony in the allowance of have “whether allowing the same shall fit, alimony the bond of in cases of divorce from power, if it to award see

441 Howell, 45, P. v. 104 37 de- Howell Cal. ale of matrimony character highly has our statute a (1894), given rigid absolute 770 and is of more (cid:127)cree interpretation. and restrictive in cases technical the decree finality that of than York, in re- 13 where the We note New from bed board.” divorce prevailed, construction has strictive App.D.C. 347. legislature amplify has been forced concluded, :and overexacting statute so as to indicate with no intimation contains statute “The precision give its will to the courts continu- contrary the On difference. jurisdiction ous the economic welfare over quite the reverse. intimation is Clevenger’s of a former wife. Practice alimony in cases implication is that Manual, Act, Practice Matri- Civil matrimony is the bond divorce from Actions, monial § basis precisely the same placed bed compiled from Provisions of alimony of divorce in this in cases laws any good liberally state are to be Nor is there construed “with a board. application objects view to effect promote for the their ground in reason justice.” Further, in the different I.C. a different rule 73-102. in Good § App.D.C. at 347. classes of cases.” 13 Good, 79 (1957), Idaho 311 P.2d 756 repudiated this court theory power Mor- thinking agree I of Justice to award alimony, in absolute rests language ris. It seems clear from the solely on statute. In that case we held that legislature, in trans- our statute that 32-706, I.C. supra, prohibit did not ferring to the courts district court exercising from its discretion matrimony, divorces from the bonds of in awarding alimony in a case a di- where professed con- those to annex incidents granted vorce is for the husband district tinuous which our fault wife. previously courts had allow- exercised over separate other ances for maintenance. For The California court in McClure v. Mc- supporting theory authorities that ali- Clure, 584, 587, 4 Cal.2d 49 P.2d 100 nature, mony, final, is not 71 its see: (1935), my opinion, A.L.R. 1257 has A.L.R. Anno. III. b. 738-740. rule, widely extended the accepted, pro- where the decree makes no Unfortunately, in Mathers vision for none thereafter Mathers, (1926), 42 Idaho 468 P. allowed. The the rule was rationale of McDonald, McDonald v. Idaho allowed, P.2d (1936), ration- there following the that where no 442 modified, the con- property rights to be within the parties,

was no order the- nor templation right The statute alimony litigated the statute. of the wife to were arguably open be to such construction. the divorce by action or concluded However, Hence, mote reasonable basis for decree. a the decree in that case was- regarded to judgment rule has been In such cases be advanced. as a the effect to alimony was that alimony courts have said that where the wife was not entitled to action, because acquired by an issue in the divorce the failure she had contract a. alimony to allow sufficient estate support. its decree to for her In that case regarded by 457, (56 as a determination court held Idaho 55 Usually P.2d 827) none. that the wife is entitled to the district court was with- jurisdiction out reopen wife has in such cases it is that the found the divorce de- income, However, cree after separate or a it had estate or become final. sufficient by (§ 32-706, statute upon her supra) sufficient estate is settled was not re- ferred to in decree, community property, opinion. by that' division of The court cited support. Mathers Mathers, v. otherwise, provide 821, 42 Idaho P. or 248 468 (1926), Duvall, 244 N.W. Budge in Duvall 215 Iowa a con- Justice curring opinion Anno. also 83 A.L.R. cited the Mathers case- (1932), 718

but likewise did not refer to the statute- decree case, the McClure In the here considered. holding that alimony. The

provided for per- subsequent order that' held In the Mathers case it was could trial court modi- authority provision decree made no itself of where a divorce manently divest respect to had become- and the decree previous orders fy its deny the final, there- court had no the statute appears to overrule Fur- legislature. reopen purpose- by the after to for the authority granted ali- allowance of modifying a it there thermore, case in the McClure mony. called at- In that case the court remarried, had the wife suggestion the com- tention to the fact that a share of statutory ground a in that state was munity property awarded to the- had been alimony. for cancellation Again wife. not refer to the court did McDonald, Idaho 55 McDonald It here considered. construe the statute P. Idaho 55 (1934), however, P.2d and 56 did, 39 293 cite case of Howell v. into entered Howell, had (1936), 2d 827 Am.St. 37 P. 43 Cal. agreement prior to property settlement In the case the Califor- (1894). cited Code, Neither nia court construed California Civil entry the divorce decree. 32-706, herself, ability support as I.C. here Mrs. (the same our § involved), saying: wit: however, “provided, upon adequate clearly contem “But the latter section showing of the defendant of her in- right alimony, well plates herself, ability to the Court rights, property financial and

as other shall, upon proper representation on or litigated presented been shall have day April, before the 6th re- estab in the action for alimony.” question consider pro judgment; lished and the properly con- this order is I do not think that, ali right where the vision is perma- expressing an intent to strued as established, mony has been thus obligation nently the husband of the relieve changed by modifica amount a support his former wife. case at tion of the order. But ” 'modify.’ nothing bar there was intended “Doubtless Howell, P. Howell v. 104 Cal. and payments, a cessation was such 770, at 771. itself.” an annulment order Ross, P.2d Ross v. 1 Cal.2d right In to ali this case Mrs. Jordan’s (1934). by the mony litigated and established was ground event, any record reveals no motion for decree. The husband’s permanently upon the court could upon ground modification was based the issue over divest itself entered, al at time the decree was statute, and, alimony, face of alimony, wife lowing per month $175 so. it not be held to have done should herself, support ill unable was 728-740; Anno. A.L.R. Anno. 100 was well that at the time of the motion she A.L.R. provide herself; and able to providing modifying the decree deprive adopted here will The rule alimony payments termination of this state of courts of April was based worthy how relief in case no matter change in her condition. Here there legisla- The intent of meritorious. way provision by remarriage no no free to exercise ture was to leave the courts

property a division or settlement to discretion, equity in such and to do a sound permanent and the is final termination of case, wife, though even to the end that alimony. Furthermore, sue fault, object of an not become without need expressed regarding charity. in its order a doubt

Case Details

Case Name: Jordan v. Jordan

Court Name: Idaho Supreme Court

Date Published: Jul 17, 1964

Citation: 394 P.2d 163

Docket Number: 9455

Court Abbreviation: Idaho