Kelly v. Kelly, 194 Mich. 94

Kelly v. Kelly

194 Mich. 94 | Mich. | 1916

Ostrander, J.

(after stating the facts). 1. The statute (8 Comp. Laws, § 8641, 3 Comp. Laws 1915, § 11417) provides that after a decree for alimony or other allowance for the wife and child, or either of them, the court may from time to time on the petition of either of the parties revise and alter such decree respecting the amount of such alimony or allowance and the payment thereof, and may make any decree respecting any of the said matters which such court might have made in the original suit. The modification of the decree which is asked for would affect only the provision made for the support of the infant. Jurisdiction of the court to revise it is affirmed in Camp v. Camp, 158 Mich. 221 (122 N. W. 521), and in Aldrich v. Aldrich, 166 Mich. 248 (131 N. W. 542), *102in each of which cases an agreement of the parties with respect to alimony was approved by the court and embraced in the decree.

2. The testimony does not convince me that' the award of alimony originally madeo is excessive in amount, or that the defendant has violated or has intended to violate any provision of the decree, or of the agreement which was approved by the decree. The question then is: Have new facts arisen since the decree was made justifying its modification? Defendant’s requirements have not diminished. She works, and it is fairly inferable that she intended, when she made the agreement with her husband, and when the decree was made, to work as her needs required. The facts which are presented as new and as having arisen since the decree was made are in the condition of the complainant husband, the petitioner here. He remarried, a voluntary act, but not one which he is permitted to say itself warrants a modification of the decree in his favor. Smith v. Smith, 139 Mich. 133 (102 N. W. 631).

The financial condition of petitioner has changed materially since the decree was made; the result, it appears, of resigning a position in which he earned a considerable salary and embarking in a new business. He expects, he says, that his income will increase in time. That a man is under obligation to pay alimony is a fact which does not, necessarily, preclude him from changing his employment or engaging in new business adventures; but the obligation is one to be considered, along with others, before making such a change. Wisely, I think, the court gave petitioner, in view of his present financial condition, some immediate relief without amending the decree, and the order made is affirmed, with costs to appellee.

Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.