52 Colo. 522 | Colo. | 1912
delivered the opinion, of the court:
On the 17th; day of July, 1909, a decree of divorce was granted to Anna A. Prewitt, as plaintiff, against Francis E. Prewitt, as defendant, in the county court of Arapahoe county, and, at the same time, the defendant was ordered to pay to the plaintiff on that day the sum of $83.35, and a like sum on the 17th day of each and ever}'- succeeding month, as permanent alimony. On the 14th day of August, 1911, the plaintiff filed her petition in the action, asking for a modification of the decree for alimony and that the defendant be ordered to pay her $100 per month for each and every month thereafter, until the further order of the court.
Thereafter, the defendant filed a motion to strike the said ¡petition of plaintiff from the files, for various reasons, and that the decree for alimony be satisfied. Upon a hearing, the. motion to strike the petition and to enter a satisfaction of the decree for alimony was sustained by the court on the 9th day of September, 1911, and, on the same day, the court considered a.motion of plaintiff to vacate the satisfaction of the judgment, both parties being present and consenting to the consideration of the last motion at that time. This motion to vacate was denied by the court. Thereafter, in the month of September, 1911, the plaintiff sued out a writ of error from this court to review the action of the lower court in striking the petition for a modification of alimony and in entering the satisfaction of the judgment and denying the motion to vacate the same.
“By virtue of the general equity powers of a court granting a divorce, as well as by virtue of the provision of sec. 9 of the divorce' act, Session Laws, 1893, p. 240, such court has the authority to modify the decree relative to alimony payable in the future, and the custody and control of minor children as the changed circumstances of the parties may render necessary and just.”
Section 9 of the divorce act referred to was amended in 1907, and as amended is section 2118 Revised-Statutes. Tire section is the same as it was before the amendment, except that thére is added a proviso that when a divorced woman re-márries áfter'obtaining a decree of-divorce, the court shall'-annul 'the provisions relative to alimony, upon-application of thedivoixed husband, on notice and proof of re-marriage, and the further proviso that the
A judgment with respect to a modification of a decree for alimony is reviewable in an appellate court. Stillman v. Stillman, 99 Ill. 196. Such a judgment is reviewable in this court, for such a one was reviewed in the. Stevens case. Under the code, a writ of error shall not be brought after the expiration of three years from the rendition of the judgment complained of. Section 436, Rev. Code. A writ of error to review a decree granting a divorce shall be sued out within six months from the date of the decree. Sec. 2123, Rev. Stat.
If the period of limitation, within which a writ of error may' be sued out to review a judgment with respect to the modification of the original decree for alimony, begins to run at the- time of the rendition of such decree, then in a case like that of Stevens v. Stevens, supra, the judgment with respect to the modification, no matter how erroneous it may be, cannot be reviewed at all, if the party erroneously'- favored should move to dismiss the .writ of error on account of the lapse of the period of limitation. If the judgment is modified so as to increase, decrease, or stop entirely the payment of alimony, the judgment to be enforced is the judgment modified as to alimony—not the original decree. The latter is wiped out and a new judgment- for alimony is entered. Thereafter, the payment or collection of the alimony is made with reference to the modified judgment, and not'to the-original .one: The modified judgment is as final as the original one was when entered. The modification is not a proceeding subsequent
In the present case, the judgment of modification wipes out the payment of alimony altogether, and if it is not reversed on review, or if no review' thereof be sought, it is as final as any judgment can be. It ends the matter forever and completely. The right of the plaintiff to have her decree for alimony modified has been finally and completely adjudicated by the lower court. Under such circumstances, the judgment with reference to the modification is certainly a final judgment, to review which a writ of error will lie from this court. Standley v. Hendrie & Bolthoff Mfg. Co., 25 Colo. 376. That being so, the limitation period within which a writ of error must be sued out to review' this last judgment of the county court, began at the time of the entry of such modified judgment.
It follows that whether the period of- limitation be regarded as six months or three years, this writ of error was sued out in time, and the motion to dismiss it should be denied.
Motion Denied.