36 N.W.2d 17 | Minn. | 1949
In default divorce proceedings, in which defendant made no appearance whatever, plaintiff was awarded an absolute divorce on the ground of cruel and inhuman treatment and was given the permanent custody of the parties' only child, a four-year-old son. Plaintiff was awarded the household goods and furnishings, $50 per week as alimony, and $25 per week for the support of the minor child. The trial court in its findings — after stating that defendant had a monthly wage of $250 as a salesman plus a liberal expense account which took care of his living expenses — specifically found that defendant earned and was capable of earning $500 or more per month; that he maintained a life insurance program of approximately *30 $13,000; and that within the year he had inherited the sum of $4,000.
The divorce was granted on January 5, 1948. On April 20, 1948, defendant made his motion for a modification of the awards for alimony and support money on the grounds that (1) he had not at any time earned an amount sufficient to pay such awards; (2) that such awards are contrary to M.S.A.
1. A trial court's finding of ultimate fact — such as the amount of the husband's estate and income in a divorce proceeding — will be presumed to be supported by the evidence and will not be reviewed by the supreme court when the record does not contain all the evidence introduced at the trial pertaining thereto. Pavelka v. Pavelka,
2. Based upon the trial court's findings of fact as to the amount and nature of the husband's estate, earnings, and income, was the award of alimony to plaintiff contrary to law as being in excess of the statutory one-third? It is elementary that the provisions of §
In the absence of pertinent evidence in the record, it may also be assumed that the trial court in awarding alimony took into consideration the cash surrender value of defendant's insurance policies as constituting part of his estate. The cash surrender value was determinable by actuarial computation. See, Loth v. Loth,
3. No finding was made as to the value of the household goods and furnishings awarded to plaintiff. Where the findings of the trial court are silent as to the value of property assigned to the wife in a divorce proceeding and the record does not contain the evidence upon which the findings are based, it will be presumed that the property is of only nominal value. Loth v. Loth, supra.
4-5. Should the trial court have granted the motion for a modification of the awards of alimony and support money on the ground that defendant's circumstances had changed with respect to his earning power and income? In his personal supporting affidavit, defendant alleged that commencing with February 1, 1948, he no longer had a salary of $250 per month plus a liberal expense account to take care of his living expenses, but that instead he had — *33 "a drawing account of $200.00 per month, which is charged against a three per cent commission on all sales made by him; that he pays all of his own travel expenses while on the road; that this is the sole and only source of affiant's income * * *."
In no manner has defendant personally indicated the amount of his commissions or the net amount of his take-home pay. The affidavit of John Jurgens, an officer of the company by which defendant is employed, stated:
"* * * that the defendant * * * has been employed * * * since October 5, 1947; * * * and his compensation is a drawing account of $200.00 per month, which is charged against a three per cent commission on all sales made by him; that this arrangement commenced February 1, 1948; that from October 5, 1947, to February 1, 1948, Forrest T. McKey was employed at a salary of $250.00 per month and that after deductions for social security, withholding tax, and other deductions, the net take home pay of the defendant above named has been at the rate of $220.00 per month."
The Jurgens affidavit is of no help in disclosing defendant's income subsequent to February 1, 1948. It was made only 27 days after the new employment arrangements had gone into effect. It can be construed only as a statement that defendant had a net take-home pay of $220 per month prior to February 1, 1948. Under these circumstances, it would clearly have been an abuse of discretion to order a modification of the alimony and support money awards. The discretionary power of the court to modify an order or judgment awarding alimony, whether it be for a gross amount or payable in installments, is to be exercised cautiously and only upon clear proof of facts showing that a substantial change in the circumstances of the parties renders the modification equitable. 2 Dunnell, Dig. Supp. § 2805, and cases there cited. The defendant, in attempting to establish a change of conditions as to his employment and income, had it in his power to give forthright and definite information concerning his net earnings, and this he failed to do. The burden of furnishing the court, in a straightforward and unambiguous *34 manner, with clear proof of the facts rests upon the party who moves for a modification.
6. Aside from an alleged change in his earnings, defendant asserts that his inheritance of $4,000 is no longer available for alimony, in that part of the money has been spent and in that he has found it necessary, in order to obtain housing accommodations in Rapid City, South Dakota, where he is now employed, to make a part payment of $3,101.20 on the purchase of a house. He also alleges that he must make monthly installment payments of $73.88 for principal and $20.86 for interest on the balance of the purchase price. Upon the showing made by defendant, there is no indication why he should require an entire house for his individual use or why a part thereof could not be sublet for a cash rental to supplement his income. The duty to pay alimony and support money is a primary obligation that clearly takes precedence over wilfully incurred subsequent obligations which go beyond the husband's reasonable needs.
7. If, construing plaintiff's counteraffidavit in the light most favorable to defendant, he has remarried and for that reason has purchased a home in Rapid City, such fact furnishes no basis for a modification. In Quist v. Quist,
"* * * Subsequent marriage of a divorced husband is his voluntary act, which is his right, but not a circumstance which warrants a modification of allowances in a divorce decree for his wife and child. Such allowances have a fixed and prior claim on the earnings of the divorced husband. He has no option as to compliance with the decree and is powerless to rid himself of its obligations by his own voluntary act. He cannot substitute the new obligations of his own choice arising from a subsequent marriage for those which the decree imposed upon him as arising from the prior marriage." See, Hagen v. Hagen,
Plaintiff is allowed $250 attorneys' fees in this court in addition to her taxable costs and disbursements. *35
The order of the trial court is affirmed.
Affirmed.