Narregang v. Narregang

139 N.W. 341 | S.D. | 1913

Lead Opinion

WHITING, J.

This is a divorce action, and it was tried and decree entered therein in the year 1909. The said decree was in favor of the plaintiff, and, among other things, granted to her alimony in a gross or lump sum. The original decree made no provision for the payment of this alimony in installments, gnd it all became due at once; but, on stipulation of the parties thereafter entered into, the court granted an extension of time for the payment of part of the amount due, and, through certain other orders, the time of payment of a’ part of said alimony was further extended, so that in January, 1912, a part of said alimony still remained unpaid. At that time the defendant, having learned of the marriage of plaintiff to a third party, petitioned the court, asking that he be relieved from the payment of that part of the alimony-then unpaid. The trial court denied this petition, and it is from the order denying such petition that this appeal is taken.

Section 92 of'the Civil Code of this State provides: “Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of. the parties respectively; and the court may from time to time modify its -orders in these respects.” Appellant contends that, under the above section, a trial court has jurisdiction to, and should, modify a decree for alimony, whenever changed conditions render such modification equitable and just, and that this can be done, whether the decree to be modified was one granting support by way of monthly or periodical allowances, or whether it be one granting such support or alimony in a gross sum. Respondent contends that a decree allowing alimony in a gross sum is to be treated the same as any other money judgment, and will .be subject to change only under the rules governing other money judgments. In the view which we take of this case it becomes unnecessary for us to determine this question.

While there are certain matters that must be taken into consideration by the court in granting any allowance for support, whether it be one of a gross sum or one payable in periodical installments, -yet those matters which should' be considered in determining the amount of an allowance in gross must of necessity differ widely from those which should be considered in arriving at a just periodical allowance. In fixing a periodical allowance, the court does so with no thought of the changes which the future may bring about, knowing that, under the law,' the decree may be adjusted to meet the changed conditions, if there be changes. The court thinks only of the present conditions of the parties, -and determines what would be equitable and just if those conditions continue. Thus, while the court would take into- consideration the age of the parties as it might bear upon their physical ability to supply the needs of life, the -court, in determining the amount of a continuing allowance, would not, for any purpose, take into consideration either -party’s natural life -expectancy, as it would be absolutely immaterial in the determination of a just present allowance; and, while the court would understand -that, where the decree granted an absolute divorce, either party might and possibly would remarry, yet this fact would in no manner enter into the question of the rightful amount of a periodical allowance. When fixing the amount which should be decreed in gross as an allowance for support, the court, expecting that the decree for alimony will be paid before there will come any changed conditions, and expecting this 'to be the final adjustment of the financial rights and obligations of the parties, not only takes into consideration the present earning capacity of each party, but his or her probable future earning capacity. It takes into consideration -the probable duration of the life of each, the chance of the remarriage of one or both parties, the possibilities of sickness, and the fact that either or -both, through inheritance or -other good fortune, may acquire a further estate. After weighing all conditions, both existing and anticipatory, that might properly be considered in arriving at the determination of that sum of-money which will be a fair adjustment of the rights and obligations of -the parties, the court determines the amount which, as a gross allowance, would, under the circumstances, - be just and equitable, and, having decided that it would be in furtherance of public welfare and to the interest of the parties themselves so to do, it decrees a gross allowance. It may chance that th-e former wife or husband dies within a short period after decree granted. If so, it results in the amount decreed being in excess of what would have been paid under any reasonable periodical allowance. It may happen, as in the case at bar, that th-e former wife remarries, and, through such remarriage, obtains support, such as, in case the decree had made a periodical allowance, would justify the trial court in terminating such allowance. Thus again, if a decree fixing an allowance in gross has been- granted, it may result in the former wife receiving much more than she would have received under a .periodical allowance. There can be no difference in principle between a case where there is a remarriage than where there is an untimely death, unless the fact that there was to be a remarriage was known to the wife prior to the divorce. Upon the other hand, neither party may remarry, and both may live out a span of life far' in excess of that to be anticipated under the tables of mortality. The former wife may become sick or otherwise physically unable to care for herself, or the husband may become possessed of great wealth. Under such circumstances a decree of a gdoss allowance for support would prove to -the financial advantage of the former husband.

It certainly tends to the promotion of the public welfare, and usually to the welfare of the parties to a divorce action, if the decree that grants an absolute divorce also terminates all relations and duties of a financial nature existing between the parties, and it is this fact that justifies such a decree. If it were not expected that there would be a final termination of the rights and obligations of the parties, so far as the support of the wife is concerned, we doubt if any court would ever grant a gross allowance. The parties to this action must have considered that the decree was justified by the facts proven, and by the other matters, anticipatory in nature, of which the trial court would take cognizance; otherwise, there would have been an appeal. Nothing has occurred that could not have been anticipated by the trial court, and therefore considered by him in rendering the decree, and surely the judge who granted the decree, who is the judge of whom the modification was sought knew what he took into consideration when granting.the decree. The decree was in all things fair and just, and the alimony therein fixed would have been paid long before respondent’s remarriage, had its payment not been stayed at appellant’s request. 'Conceding- that it was within the discretion of the trial court to modify the allowance which it .had made, though it was in a gross sum, there was no abuse of discretion in its refusal so to do.

The order of the trial court is affirmed.

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Dissenting Opinion

SMITH, J.

(dissenting). I am unable to concur in the conclusion announced in this case. I am persuaded that, under the provisions of section 92 of the Civil Code, the trial court was authorized to modify its order in the matter of allowance to the divorced wife for support during her life, or for a shorter period, whenever the circumstances of the case have so changed as to render the continuation of support by the divorced husband, inappropriate and unnecessary. In the case at bar the trial court awarded the plaintiff the sum of $25,000 for her support, without any condition as to the time of payment. Thereafter the time of payment was modified, upon a stipulation of counsel of plaintiff and defendant, by an order of the trial court so as to. require payment of $5,000 upon the entry of judgment, $5,000 on 'September X, 1910, and the remaining $15,000 on December 1, 1910. Under this modified order, $10,000 was paid, and thereafter, on November 4, 1910, on a hearing by stipulation, upon motion of defendant, to further modify the order, the time of -payment of the remaining $15,000 was extended to the 1st day of June, 1911. Under this modified order, the sum of $5,000 was paid plaintiff, and thereafter, on notice and further hearing, the court modified the 1-as-t order, so as to require -the remaining allowance of $10,000 to be paid as follows: The sum of $2,000 on or before the 1st day of' December, 191-1, $3,000 !on or before the i-st day of June, 1912, and the remaining $5,000 on or before December 1, 1912. Under this order, $2,000 due December x, 1911, was -paid, leaving unpaid the sum of $3,000 due June 1, 1912, and the sum of $5,000 due, December 1, 1912. .Under these various orders, between -the 23d day of May, 1910, and the 11th day of October, 1911, the plaintiff was paid the sum of $17,000 for support, and defendant does not ask to be relieved from payment of the $3,000 due June 1, 1912.

On the 18th day -of November, 19x1, in the city of San Francisco, state of 'California, plaintiff, Helen Caystile Narregang, was married to one Allen Vining Duncan, and in all respects has been since that time" properly and abundantly cared for and supported by him as his wife. It is undisputed that Duncan is a member -of a firm -engaged in extensive business -enterprises, owns a large amount of real property, and has other investments in the vicinity of Dos Angeles, is in receipt of an annual income -of $10,000 or more, and is abundantly able to support the plaintiff in comfort and luxury. It is undisputed that, at the time plaintiff and defendant were married plaintiff was 22 years of age, and defendant 39 years of age; that there were no children, the issue of the marriage; that defendant is now 50 years of age. The defendant, Spencer W. Narregang made an application to the trial court, upon a showing embracing these facts, on the 9th day of February, 1912, for an order relieving- him from payment of the $5,000 on December 1, 19x2. On May 11, 1912, the trial court denied the application. The appeal is from 'this order.

The single question discussed and determined by the majority opinion is the propriety of the order refusing to relieve defendant from payment of the last $5,000 of support money on the 1st day of December, 1912. .The plaintiff remarried about a year and a half after her divorce, and- during that time, under the allowance made by the trial court, has received substantially $20,000 for support from defendant. He asked to be relieved from payment of the balance of $5,000 of the allowance not then due. This relief was refused by the trial court, and the refusal is approved by the majority opinion, on the ground that the trial court, was within its discretionary power. The divorced wife was without children, and it is not claimed or suggested that at the time of her marriage to defendant she was the owner of, or brought into the common fund, a single dollar, or any property whatever, or that by her industry or efforts she ever added a dollar to the accumulations of the husband. Notwithstanding these facts, the trial court allowed her, and she has been paid inside of a year and a half, $20,000 of support money by her former husband. She is now the wife of a man amply able and willing to support her in comfort and luxury. Under such conditions, it appears to me nothing short of an abuse of discretion to refuse to relieve the former husband from payment of any further allowance for support. I venture the statement that no case can be found in any court of any state, having statutes similar to our own, in which such relief has been denied under conditions such .as are disclosed in this record. Universally the courts recognize the remarriage of the wife, and the right to support thus acquired, as a proper ground for relief of the former husband from the duty of support.

A review of the cases would extend the discussion .beyond the limits I care to go in this case, and I shall merely cite some of the decisions recognizing the rule which, in my judgment, ¡should -be applied in this case. It is stated in 14 Cyc. 787, (D), as follows: “Where a wife has obtained an absolute divorce, carrying with it the privilege of remarriage, and permanent alimony -is decreed to her, it is generally held that the husband, upon her subsequent remarriage, may secure an order vacating the decree as to alimony.” It is true certain courts have held that a divorced wife, who has married again, may receive support, by the sanction of judicial order, from both her former and present husbands; but in my judgment the weight of authority, and the sounder reasoning from the accepted standards of civilized society >are against such conditions.

In the case of Stillman v. Stillman, 99 Ill. 196, 39 Am. Rep. 21, the court says: “It would be difficult to suggest or conceive any -cause that would present grounds more ‘reasonable and proper’ for suspending further payment of alimony than the subsequent marriage of the divorced wife. The impression made by the doctrine of common law, that by marriage husband and wife are one person in law, has not been entirely removed- from the mind by modern legislation. The obligation implied in the marital relation resting on the husband to suport his wife remains, having all the binding efficacy it had at common law. 'Courts of equity will be slow-to change that obligation in any case from the husband -to another man, although he may once ¡have been the -husband of the wife. Aside from its positive unseemliness, such a policy finds no support in any equitable consideration. Treating alimony as may be done, as the equivalent for that obligation. of support which arises in favor of the wife out of the marriage contract, and which is lost when that contract,is annulled by the decree, she obtains the same obligation for support by second marriage. It is unreasonable that she should have the, equivalent of an obligation for support by the way of alimony from a former husband, and an obligation from a present husband for an adequate support, at the same time. It is illogical, as-well as unreasonable. It is her privilege to abandon the provision the decree of the court made for her support under the sanction, of the law for another provision for maintenance which she would obtain by a second marriage, and when she has done so-the law will require her to abide her election.”

The following decisions sustain this view; Cohen v. Cohen, 150 Cal. 99, 88 Pac. 267, 11 Ann. Cas. 520, and notes; Casteel v. Casteel, 38 Ark. 477; Morgan v. Lowman, 80 Ill. App. 557; Southworth v. Treadwell, 168 Mass. 511, 47 N. E. 93; Bankston v. Bankston, 27 Miss. 692; Olney v. Watts, 43 Ohio St. 499, 3 N. E. 354; Brandt v. Brandt, 40 Or. 477, 67 Pac. 508; King v. King, 38 Ohio St. 370; Brown v. Brown, 38 Ark. 324; Franck v. Franck, 107 Ky. 362, 54 S. W. 195; Kiralfy v. Kiralfy, 36 Misc. Rep. 407, 73 N. Y. Supp. 708; Comstock v. Comstock, 49 Misc. Rep. 599, 99 N. Y. Supp. 1057; Wetmore v. Wetmore, 162 N. Y. 503, 56 N. E. 997, 48 L. R. A. 666. In Cohen v. Cohen, supra, the Supreme Court of California, construing a statute precisely like our own, said“The Code expressly gives the court power tO' modify from time to time' its orders respecting permanent alimony. Civil Code Cal. § 139. The judgment in the first instance might have been made for a gross sum or for periodical payments, either for a stated.period, or, as in effect was done, during the life of the plaintiff.”

The order of the trial court should have been reversed.

CORSON, J., concurs in the dissenting opinion of'SMITH, J.