3 S.D. 619 | S.D. | 1893
In 1891, appellant commenced an action against respondent for separate maintenance. While such action was pending, respondent began an action in the same court against appellant for divorce. These actions were consolidated, and appellant’s pleadings so amended as to ask for a divorce from respondent. Upon the trial a judgment of divorce was entered in favor of appellant, and against respondent, and by the judgment of the court $25 was ordered to be paid monthly by respondent to appellant for her support. Upon the 20th day of April, 1892, on motion of respondent, and upon his affidavit purporting to justly exhibit his financial condition, and upon counter affidavits on the part of appellant, the court made an order reducing such alimony to $15 per month, with leave to appellant to apply for a modification if respondent’s circumstances should subsequently improve. To the making of this order appellant objected, both upon the merits and on the ground that the court had no authority to change or modify the alimony as fixed in the judgment, except upon a showing of a material change in the circumstances of respondent. On the 6th day of September following, appellant moved .the court for an order increasing her alimony in this, case from $15 per month to $25 per month, and setting aside the order of April 20th, 1892, which temporarily reduced the alimony from $25 per month to $15 per month. This motion was supported and resisted by affidavits. The motion was denied, and this appeal is brought to review such decision.
It is contended by appellant that the motion should have been granted, for the reason that the order of April 20th, reducing the alimony, was made without authority, because it was not shown that respondent’s circumstances had changed for the worse since the rendition of the judgment which fixed the alimony at $25.
So far as the order appealed from may be regarded as a refusal by the court to increase the allowance to appellant to $25 per month, we think it is right, upon the facts shown. Of course we know nothing of the evidence upon which the divorce was granted. The cause was desertion, and we assume that respondent was the party principally in fault. The affidavit before us shows that he hás no property, no profession, and no money, except as he earns it either by manual or mental labor; that he is charged with the support of the infant child of the parties of this proceeding, and is considerably in debt. The appellant is not in good health, but is sufficiently strong so that she is earning moderate wages at typewriting. The case presents not only the question of how much a woman so circumstanced ought to have, but also the question of how much a man so circumstanced ought to pay. In the adjustment of these conflicting considerations, we think the court below acted with discretion and good judgment. The order appealed from is affirmed.