Sweeney v. Sweeney

179 P. 638 | Nev. | 1919

By the Court,

Sanders, J.:

This proceeding was begun on the 13th day of October, 1917, by petition and motion of Mabel Viola Sweeney, entitled in the divorce action of Mabel Viola Sweeney, plaintiff, against James G. Sweeney, defendant, to have the judgment for absolute divorce rendered therein on the 30th day of December, 1914, modified, altered, and amended so as to make the alimony awarded the plaintiff and for the support of the minor child of the marriage a lien upon the estate of the defendant, who died on the 7th day of July, 1917, superior to creditors and the devisees under the last will and testament of the defendant, and, further, to have the present value of the judgment ascertained and determined, and, when ascertained and determined, adjudged and decreed to be a lawful claim against the estate of the defendant in the hands of his executors, as a judgment made and found on the date of the original decree, to wit, December 30, 1914.

The decree of divorce, among other things, provides as follows:

“It is further ordered, adjudged, and decreed that defendant pay to plaintiff, beginning with the date of this decree, payable in advance, the sum of $25 per month each and every month for the support, care, maintenance and education of said minor child, Alice Louise Sweeney, until she attains her majority, and in like manner and time pay to the plaintiff the further sum of $50 each and every month, until the plaintiff may again marry, as alimony for her support.”

The petitioner sets up in her petition her marriage,’ her decree of divorce, the death of the defendant, his last will and testament, the value of the- testator’s estate, approximately $30,000, the probate of his will devising all of his property to his executors, except a bequest of $2,000 to his daughter, Alice Louise Sweeney, the issuance of letters testamentary to the executors (appellants), and the publication of notice to creditors. She further alleges that no provision was made in the divorce judgment to secure the sums ordered to be paid to plaintiff by the defendant for the support of said daughter, a minor child of the marriage whose custody, by the terms of the decree, was awarded to plaintiff, and, further, that no provision was made in the said decree to secure the alimony awarded plaintiff. And upon information and belief she alleges that the executors of the estate of James G. Sweeney will refuse to continue payment of said sums and will decline and refuse to set apart any part or portion of the estate of the defendant to secure the continued payment of said sums, or either of them, and, being without remedy, she demands that the executors of the last will and testament of James G. Sweeney be substituted as defendants for their testator in the divorce suit, and that the judgment for divorce be modified, altered, and amended in conformity to the prayer of her petition.

The district court, upon a hearing of the motion, substituted the executors as defendants for their testator in the divorce suit, and by its order found the present value of the judgment in said action to be $10,022.13, of which sum $1,214.13 (says the order of the court) is for the care, custody, and support of the minor child, Alice Louise Sweeney, and $8,808, is for the support and maintenance of the plaintiff in said action, taking into consideration the life expectancy of said Alice Louise Sweeney, the life expectancy of plaintiff, Mabel Viola Sweeney, and taking into consideration the chances of the remarriage of the plaintiff, Mabel Viola Sweeney. And by its order adjudged and decreed the value of the judgment, so ascertained and determined, to be paid Mabel Viola Sweeney in lieu of and in place of the monthly sums as provided in said decree of divorce, and further ordered, adj udged, and decreed that the lump sum be and is made a lien upon the property and assets of the estate of James G. Sweeney, deceased, as a j udgment made and found on the date of the original decree, to wit, December 30, 1914, and further ordered, adjudged, and decreed that said judgment be approved as an approved and allowed claim against said estate and paid in the due course of its administration and settlement.

A certified copy of the judgment' for divorce was, within the time required by law, presented to the representatives of the estate of James G. Sweeney, deceased, as a claim against his estate, which was neither approved nor rejected. It appears that thereafter the attorneys for the respective parties entered into a written stipulation, in part as follows:

“That the above-entitled proceedings be heard and determined, and that in all respects said proceedings be considered as a suit and action against the estate of James G. Sweeney upon said claim as though the same had been rejected, and that both proceedings be in effect determined together.”

The appellants appeal to this court from the said order and judgment by separate notices of appeal, and by their' assignments of error, sixteen in number, raise the question of the jurisdiction, power, and authority of the court below under the statute, the general law, and in the circumstances of this case, to make said order and render such judgment.

1, 2. The movant and petitioner (the plaintiff in the divorce suit) alleges in her petition that no provision was made and no specific property of the defendant was set aside by the original decree for the purpose of securing the monthly sums adjudged and decreed to be paid plaintiff by the defendant. We regard this as an admission on the part of the plaintiff (petitioner) that the judgment rendered in connection with the decree for divorce, standing .alone, could not be construed as a charge upon the estate of the defendant; otherwise there would have been no necessity for the procedure adopted to modify, alter, and amend the judgment. Undoubtedly the rule is that a judgment cannot be set aside, altered, or amended after the term of court at which it was rendered. State v. First National Bank of Nevada, 4 Nev. 358; Daniels v. Daniels, 12 Nev. 118; Lang Syne M. Co. v. Ross, 20 Nev. 136, 18 Pac. 358, 19 Am. St. Rep. 337; 15 Ency. Pl. & Pr. 216. Now that terms of court are abolished (State v. Jackman, 31 Nev. 511, 104 Pac. 13), a judgment can be set aside or amended only as provided by statute (Rev. Laws, 5084), except for fraud or other instances not material here.

It is the contention of the respondent that the rule of the statute does not apply to a judgment rendered in connection with a decree of divorce, and the appellants are precluded by their stipulation from raising the question of the court’s jurisdiction to alter and amend the final judgment in the divorce suit.

3-5. There is nothing peculiarly applicable to a divorce proceeding which gives a court jurisdiction to amend or alter a final judgment. A decree a vinculo is final, and the jurisdiction of the court over the parties is after the expiration of the term at an end; and just as there can be no grant of alimony after such a divorce, so there can be no change in the award of alimony, unless the right to make such a change is reserved by the court in its decree, as it may be, or is given by statute, as it often is. Stewart on Marriage and Divorce, secs. 366, 376. But where there is no such statute (and we have none), and where the decree does not reserve the right to the court (as it does not here) to alter the decree for alimony, no such authority exists. Howell v. Howell, 104 Cal. 45, 37 Pac. 771, 43 Am. St. Rep. 70; Egan v. Egan, 90 Cal. 15, 27 Pac. 22; Ruge v. Ruge, 97 Wash. 51, 165 Pac. 1063, L. R. A. 1917f, 721; Kamp v. Kamp, 59 N. Y. 212. The same is true as to provisions in a final judgment of divorce for the support of children of the marriage. The cases cited by respondent in this connection are based upon a particular statute or upon the terms and conditions of the decree. Granting that by our statute (Rev. Laws, 5843) courts upon the dissolution of a marriage are vested with almost unlimited authority and power to make such provision for the support of the wife and children as shall be deemed to be just and equitable, and upon such terms and conditions as it may deem necessary for such purpose, we do not apprehend that it could be successfully urged that the power thus conferred is so omnipotent as to empower a court, nearly three years after a final judgment in a divorce suit, to receive the cause, resurrect a dead defendant, and, under the guise of making his representatives parties defendant, retry an issue incident to the original action and render a judgment therein entirely different in form and effect from the original judgment. Such was the object of this proceeding, and such is the ultimate effect of the court’s order and judgment. If we countenance such practice, when would divorce litigation ever end?

6. But it is insisted by counsel for respondent that the appellants are precluded by their stipulation from raising the question of the court’s jurisdiction to modify, alter, and amend the judgment in the divorce suit, and this court by virtue of the stipulation is authorized to consider this as an action against the executors of the estate of James G. Sweeney, deceased, to have the judgment in the divorce suit adjudged and decreed to be a lawful claim against his estate as a judgment with the priority of a lien as of the date of the original decree. This we decline to do: First, because to sanction the stipulation would be to nullify the express mandate of the statute with reference to the adjudication of claims against the estates of deceased persons and permit litigants to stipulate jurisdiction to suit their own convenience — which can never be done. (Hastings v. Burning Moscow, 2 Nev. 93; Phillips v. Welch, 11 Nev. 187); second, because it affirmatively appears from the petition that the original decree makes no provision that the sums payable to the wife are a charge upon any specific property of the defendant, and the prayer of her petition is that the judgment be so altered and amended as to make the same a lien. The stipulation falls by its own weight.

Our conclusion is that the judgment rendered in connection with the decree of divorce, in legal construction, is not a charge upon the estate of James G. Sweeney, deceased, and the court below had no jurisdiction to make the order and judgment appealed from.

The order is annulled, and the j udgment is reversed.

Coleman, C. J.: I concur. Ducker, J., did not participate in the consideration of this case.