22 S.D. 453 | S.D. | 1908
This is an appeal by the defendant from an order modifying the judgment of the circuit court of Deuel county decreeing a divorce in favor of the plaintiff and against the defendant.
It is disclosed by the record that on November u, 1905, the plaintiff obtained a decree of divorce from the defendant, but that no alimony was claimed in the (complaint or provided for in the decree. On July 25, 1907, the plaintiff pesented to the circuit court a petition supported by affidavits praying that the court might modify said judgment “so as to provide for the payment to her by defendant of a certain amount for her support and maintenance and for a certain amount for the support and maintenance and education of 'said minor child, Harold E. Marks, who was by said decree awarded to your petitioner for care and custody, also that an order may be made directing said defendant to pay unto your petitioner the sum of ($50 as suit money, and a further certain reasonable amount to be paid to your petitioner’s attorney herein, Edward H. Berg, and that executions be granted to plaintiff thereon. For such other and further relief as to the court may appear just, proper, and equitable in the premises.” To the hearing of the petition of the plaintiff the defendant objected on the following ground: “ (1) The original relief now sought by the plaintiff should have been sought and included in the issues rendered by the pleadings heretofore filed in said action and determined in the judgment therein. (2) The court cannot try issues of fact and determine the merits of controversies upon affidavits, and especially where no issues are tendered or formed in regard thereto.” As to these objection's, the court reversed its ruling. Thereupon the defendant filed and presented to the court a petition, supported by affidavits, in which he asked that “an order be granted and entered to amend and correct its former decree (so) as to award the care, custody and control of said minor child, * * * during the term of his minority, and' for such other and further relief as to the court may
It is contended by the defendant and appellant that inasmuch as there was no alimony for the plaintiff or allowance for the support of the minor *child asked for in the original complaint, and no provision wais made in the judgment for such alimony or for the support of the child, the court wa's without jurisdiction to make an order granting either alimony to the plaintiff or an allowance for the support of the minor child in this proceeding. In view of the fact that the court denied the -motion of the plaintiff for alimony, it will not be necessary for the court to determine the question at this time as to whether or not- it had jurisdiction to grant alimony to the plaintiff when no claim for alimony was made in the original complaint. But we are clearly -of the. opinion that the court under the provisions of our Code had the authority to provide for an allowance for the support of the minor child to be paid by the defendant notiwthstanding the omission to- claim such an allowance in the original complaint. Sections 91 and 92 of the Revised Civil Code of 1903 provide as follows: “In an- action for divorce the court may, before or after judgment, give such direction for the
The learned counsel for the defendant and appellant has called our attention to the case of Jordan v. Jordan, 53 Mich. 550, 19 N. W. 180, in which the Supreme Court of Michigan held: “Where, in a divorce suit, a decree is given dissolving the marriage, and awarding the custody of the children to the complainant, no allowance or alimony being asked for, a motion to reform the decree by inserting therein a provision to refer the cause to a commissioner to report what would be á proper allowance for alimony, cannot be sustained. The remedy, if complainant has any, is by a supplemental bill in the nature of a bill of review.” In that case the modification asked for was alimony for the plaintiff; no alimony having been claimed in the complaint or awarded by the judgment.